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As filed with the Securities and Exchange Commission on September 30, 2024.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933
South Plains Financial, Inc.
(Exact name of registrant as
specified in its charter)
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Texas
(State or other jurisdiction of
incorporation or organization)
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75-2453320
(I.R.S. Employer Identification
Number)
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5219 City Bank Parkway
Lubbock, Texas 79407
(806) 792-7101
(Address, including zip code and telephone
number, including area code, of registrant’s principal executive offices)
Curtis C. Griffith
Chairman and Chief Executive Officer
South Plains Financial, Inc.
5219 City Bank Parkway
Lubbock, Texas 76407
(806) 792-7101
(Name, address, including zip code and
telephone number, including area code, of agent for service)
Copies to:
Peter G. Weinstock
Heather A. Eastep
Hunton Andrews Kurth LLP
1445 Ross Avenue, Suite 3700
Dallas, Texas 75202
(214) 979-3000
(214) 880-0011 (facsimile)
Approximate date of commencement of proposed
sale to the public: From time to time after the effective date of this registration statement.
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. (Check one):
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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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, as amended, or until the registration statement shall become effective on such dates as the U.S. Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
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The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration
statement filed with the U.S. Securities and Exchange Commission is 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.
PROSPECTUS
SUBJECT TO COMPLETION, DATED SEPTEMBER 30, 2024
$150,000,000
Debt Securities
Common Stock
Preferred Stock
Depositary Shares
Subscription Rights
Warrants
Units
South Plains Financial, Inc. (“we,” “us,” “our” or “the Company”)
may offer and sell, at any time and from time to time, in one or more offerings, together or separately, any combination of the securities described in this prospectus. The securities we may offer may be convertible into or exchangeable for other
securities. The maximum aggregate initial public offering price of the securities offered through this prospectus is $150,000,000, or the foreign currency equivalent thereof.
This prospectus describes some of the general terms that may
apply to these securities and the general manner in which they may be offered. Each time that we offer and sell securities using this prospectus, we will provide a supplement to this prospectus that contains specific information about the
securities and their terms and the manner in which we will offer them for sale. The prospectus supplement may also add or update information contained in this prospectus. This prospectus may not be used to sell securities unless accompanied by
the applicable prospectus supplement. You should carefully read this prospectus and any supplement to this prospectus, as well as any documents we have incorporated into this prospectus by reference, before you invest in any of these securities.
References herein to “prospectus supplement” are deemed to refer to any pricing supplement or free writing prospectus describing the specific pricing or other terms of the applicable offering that we prepare and distribute.
We may offer and sell these securities to or through one or more
underwriters, dealers and agents, or directly to purchasers, on a continuous or delayed basis. If an offering of securities involves any underwriters, dealers or agents, we will provide the names of any such underwriters, dealers or agents used
in connection with the sale of any of these securities, as well as any fees, commissions or discounts we may pay to such underwriters, dealers or agents in connection with the sale of these securities, in the applicable prospectus supplement. The
prospectus supplement for each offering of securities will describe in detail the plan of distribution for that offering. See the sections of this prospectus entitled “About This Prospectus” and “Plan of Distribution” for more information. Net
proceeds from the sale of securities will be set forth in the applicable prospectus supplement.
Our common stock is listed for trading on the Nasdaq Global
Select Market under the symbol “SPFI.” We have not yet determined whether any of the other securities that may be offered by this prospectus will be listed on any exchange. If we decide to do so, a prospectus supplement relating to such
securities will identify the exchange or market on which they will be listed.
Our principal executive office is located at 5219 City Bank
Parkway, Lubbock, Texas 79407, and our telephone number at that address is (806) 792-7101.
These securities are not savings accounts,
deposits or other obligations of any of our bank or non-bank subsidiaries and are not insured by the Federal Deposit Insurance Corporation or any other governmental agency, nor are they obligations of, or guaranteed by, a bank or savings
association.
Neither the U.S. Securities and Exchange
Commission, nor any state securities commission, the Federal Deposit Insurance Corporation, the Board of Governors of the Federal Reserve System nor any other regulatory body has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
Investing in our securities involves risks.
See “Risk Factors” beginning on page
9 of this prospectus and contained in our most recent Annual Report on Form 10-K and Quarterly Reports on Form 10-Q, which are incorporated herein by reference, as well as the risk factors
included in, or incorporated by reference into, the applicable prospectus supplement, our periodic reports and other information that we file with the U.S. Securities and Exchange Commission, and carefully read and consider that information
before buying our securities.
You should carefully read this prospectus
together with the documents we incorporate by reference and the prospectus supplement before you invest in our securities.
This prospectus is not an offer to sell any securities other than
the securities offered hereby. This prospectus is not an offer to sell securities in any jurisdictions or in any circumstances in which such an offer is unlawful.
The date of this prospectus is , 2024.
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This prospectus is part of a registration statement on Form S-3
that we filed with the U.S. Securities and Exchange Commission (the “SEC”) using a “shelf” registration process. Under this shelf registration statement, we may offer and sell, from time to time and in one or more offerings, on a continuous or
delayed basis, any combination of the securities described in this prospectus for an aggregate offering price of up to $150,000,000, or the foreign currency equivalent thereof.
This prospectus provides you with a general description of the
securities we may offer. Each time we sell securities, we will provide a prospectus supplement containing specific information about the terms of that offering. The prospectus supplement may include a discussion of any risk factors or other
special considerations that apply to those securities. The prospectus supplement may also add, update or change the information contained or incorporated by reference in this prospectus. If there is any inconsistency between the information in
this prospectus (including the information incorporated by reference herein) and information in any prospectus supplement, you should rely on the information in the applicable prospectus supplement. You should carefully read both this prospectus
and the applicable prospectus supplement together with additional information described under the heading “Where You Can Find More Information” or incorporated herein by reference as described under the heading “Incorporation of Certain
Information by Reference.”
You should rely only on the information contained in or
incorporated by reference in this prospectus and in the applicable prospectus supplement when deciding whether to invest. We have not authorized anyone to give oral or written information about this offering, the Company, or the securities
offered hereby that is different from the information included or incorporated by reference in this prospectus. If anyone provides you with different information, you should not rely on it. You should assume that the information contained in this
prospectus is accurate only as of the date on the front cover of this prospectus. Our business, financial condition, results of operations and prospects may have changed since that date.
We are not making an offer to sell or soliciting an offer to buy
these securities in any jurisdiction in which the offer or solicitation is not authorized or in which the person making the offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make the offer or solicitation.
Any of the securities described in this prospectus and in a
prospectus supplement may be convertible or exchangeable into, or exercisable for, other securities that are described in this prospectus or will be described in a prospectus supplement, and may be issued separately, together or as part of a unit
consisting of two or more securities, which may or may not be separate from one another. The securities offered hereby may include new or hybrid securities developed in the future that combine features of any of the securities described in this
prospectus.
The registration statement that contains this prospectus,
including the exhibits to the registration statement, also contains additional information about us and the securities offered under this prospectus. You can find the registration statement at the SEC’s website mentioned under the heading “Where
You Can Find More Information.”
References in this prospectus to the “Company,” “we,” “us” and
“our” are to South Plains Financial, Inc. and its wholly-owned bank subsidiary, City Bank, unless the context otherwise requires. References in this prospectus to the “Bank” are to City Bank. In this prospectus, we sometimes refer to the debt
securities, common stock, preferred stock, depositary shares and subscription rights we may offer as “offered securities.”
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INCORPORATION OF CERTAIN INFORMATION BY
REFERENCE
The SEC allows us to incorporate by reference the information
that we file with it into this prospectus, which means that we can disclose important information to you by referring you to other documents. This prospectus incorporates by reference the documents listed below that we have previously filed with
the SEC (SEC File No. 001-33912):
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our Annual Report on Form 10-K
for the year ended December 31, 2023, filed with the SEC on March 15, 2024; |
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our Definitive Proxy Statement on Schedule 14A, filed with the SEC on April 8, 2024 (solely to the extent incorporated by reference into Part III of our Annual Report on Form 10-K for the year ended
December 31, 2023); |
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our Quarterly Reports on Form 10-Q for the quarter ended March 31, 2024, filed with the SEC on May 6, 2024, and for the quarter ended June 30, 2024, filed with the SEC on August 6, 2024; |
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the description of our common stock, par value $1.00 per share, contained under the caption “Description of Capital Stock”
contained in the prospectus forming part of the Company’s Form S-1 Registration Statement, which description has been incorporated by reference in Item 1 of the Company’s Registration Statement on Form 8-A (File No. 001-38895), filed pursuant to Section 12 of the Exchange Act, on May 6, 2019, including any amendment or report
filed for the purpose of updating such description; |
We incorporate by reference any additional documents that we may
file with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (other than those furnished pursuant to Item 2.02 or Item 7.01 of Form 8-K or other information “furnished” to the
SEC), from the date of the registration statement of which this prospectus is a part until the termination of the offering of the securities offered hereby. These documents may include annual, quarterly and current reports, as well as proxy
statements. Any material that we later file with the SEC will automatically update and supersede, where appropriate, the information previously filed with the SEC. These documents are available to you without charge. See “Where You Can Find More
Information.”
Any statement contained in a document incorporated or deemed to
be incorporated herein by reference shall be deemed to be modified or superseded to the extent that a statement contained herein or in any other subsequently filed document that also is or is deemed to be incorporated herein by reference modifies
or supersedes such statement in such document.
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WHERE YOU CAN FIND MORE INFORMATION
We are subject to the information requirements of the Exchange
Act and file with the SEC annual, quarterly and current reports, proxy statements, information statements and other information. Our SEC filings are available to the public at the SEC’s web site at www.sec.gov or on our Internet web site,
https://www.spfi.bank/investor-relations. The reference to our web site is not intended to be an active link and the information on our web site is not, and you must not consider the information to be, a part of this prospectus and is not
incorporated by reference herein.
We have filed with the SEC a registration statement on Form S-3
under the Securities Act, relating to the securities covered by this prospectus. The registration statement, including the attached exhibits and schedules, contains additional relevant information about us and the securities. This prospectus does
not contain all of the information set forth in the registration statement. Whenever a reference is made in this prospectus to a contract or other document, the reference is only a summary and you should refer to the exhibits that form a part of
the registration statement for a copy of the contract or other document. You can get a copy of the registration statement and the documents referred to above under “Incorporation of Certain Information by Reference” from the SEC web site or our
web site listed above. You can also obtain these documents from us, without charge (other than exhibits, unless the exhibits are specifically incorporated by reference), upon written or oral request at the following address and telephone number:
5219 City Bank Parkway
Lubbock, Texas 79407
(806) 792-7101
Attention: Corporate Secretary
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SPECIAL NOTE REGARDING FORWARD-LOOKING
STATEMENTS
This prospectus and the documents incorporated herein by
reference contain statements that are “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1934, as amended (the “Exchange Act”) and Section 21E of 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,” “continue,” “will,” “anticipate,” “seek,” “estimate,” “intend,” “plan,” “strive,” “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 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. When considering forward-looking statements, you should keep in mind the risk factors and other cautionary statements described in the “Risk Factors”
section of this prospectus.
There are or may be important factors that could cause our actual
results to differ materially from those indicated in these forward-looking statements, including, but not limited to, the following:
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potential recession in the United States and our market areas;
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the impacts related to or resulting from bank failures and any continuation of uncertainty in the banking industry, including the
associated impact to the Company and other financial institutions of any regulatory changes or other mitigation efforts taken by government agencies in response thereto;
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increased competition for deposits and related changes in deposit customer behavior;
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the persistence of the current inflationary pressures, or the resurgence of elevated levels of inflation, in the United States and
our market areas, and its impact on market interest rates, the economy and credit quality;
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the adequacy of the allowance for credit losses;
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our ability to effectively execute our expansion strategy and manage our growth, including identifying and consummating suitable
acquisitions;
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business and economic conditions, particularly those affecting our market areas, including a decrease in or the volatility of oil
and gas prices or agricultural commodity prices within the region;
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the geographic concentration of our business in our market areas in Texas and New Mexico;
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high concentrations of loans secured by real estate located in our market areas;
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risks associated with our commercial loan portfolio, including the risk of declines in commercial real estate prices or
deterioration in value of the general business assets that secure such loans;
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potential changes in the prices, values and sales volumes of commercial and residential real estate securing our real estate
loans;
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increases in unemployment rates in the United States and our market areas;
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risks associated with our agricultural loan portfolio, including the heightened sensitivity to weather conditions, commodity
prices, and other factors generally outside the borrowers and our control;
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risks related to the significant amount of credit that we have extended to a limited number of borrowers and in a limited
geographic area;
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public funds deposits comprising a relatively high percentage of our deposits;
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potential impairment on the goodwill we have recorded or may record in connection with business acquisitions;
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our ability to maintain our reputation;
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our ability to successfully manage our credit risk and the sufficiency of our allowance for credit losses;
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our ability to attract, hire and retain qualified management personnel;
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our dependence on our management team, including our ability to retain executive officers and key employees and their customer and
community relationships;
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interest rate fluctuations, which could have an adverse effect on our profitability;
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competition from banks, credit unions and other financial services providers;
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our ability to keep pace with technological change or difficulties we may experience when implementing new technologies;
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cybersecurity risk, including cyber incidents or other failures, disruptions or security breaches of our operational or security
systems or infrastructure, or those of our third-party vendors or other service providers, including as a result of cyber-attacks;
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our ability to maintain effective internal control over financial reporting;
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employee error, fraudulent activity by employees or customers and inaccurate or incomplete information about our customers and
counterparties;
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our ability to maintain adequate liquidity and to raise necessary capital to fund our acquisition strategy and operations or to
meet increased minimum regulatory capital levels, which may require us to raise capital at a time when capital is not available on favorable terms or at all;
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costs and effects of litigation, investigations or similar matters to which we may be subject, including any effect on our
reputation;
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natural disasters, severe weather, acts of god, acts of war or terrorism, geopolitical instability, outbreaks of hostilities,
public health outbreaks (such as the COVID-19 pandemic or any future pandemic), other international or domestic calamities, and other external events or matters beyond our control;
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uncertainty regarding United States fiscal debt and budget matters;
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tariffs and trade barriers;
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compliance with governmental and regulatory requirements, including the Dodd-Frank Act Wall Street Reform and Consumer Protection
Act, the Economic Growth, Regulatory Relief, and Consumer Protection Act (“EGRRCPA”), and others relating to banking, consumer protection, securities and tax matters; and
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changes in the laws, rules, regulations, interpretations or policies relating to financial institutions, accounting, tax, trade,
current and future governmental monetary and fiscal policies, including the uncertain impacts of ongoing quantitative tightening and current and future policies of the Board of Governors of the Federal Reserve System (“Federal Reserve”)
and as a result of initiatives of the Biden administration.
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Other factors not identified above, including those that are
incorporated by reference under “Risk Factors” in this prospectus and may be described in any prospectus supplement and in the “Risk Factors” and other sections of the documents that we incorporate by reference into this prospectus, including our
Annual Reports on Form 10-K and our Quarterly Reports on Form 10-Q and in our other reports filed with the SEC, may also cause actual results to differ materially from those described in our forward-looking statements. Most of these factors are
difficult to anticipate, are generally beyond our control and may prove to be inaccurate. You should consider these factors in connection with considering any forward-looking statements.
All forward-looking statements, expressed or implied, included in
this prospectus, any applicable prospectus supplement or in a document incorporated by reference herein or therein are expressly qualified in their entirety by these cautionary statements. These cautionary statements should also be considered in
connection with any
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subsequent written or oral forward-looking statements that we or persons acting
on our behalf may issue. The Company cautions readers not to place undue reliance on any forward-looking statements, which represent our beliefs, assumptions and estimates only as of the dates on which such forward-looking statements were made.
Forward-looking statements speak only as of
the date they were made. Except as otherwise required by applicable law, we disclaim any duty to update any forward-looking statements, all of which are expressly qualified by the statements in this section, to reflect new information obtained or
events or circumstances that occur after the date any such forward-looking statement is made.
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ABOUT SOUTH PLAINS FINANCIAL, INC.
South Plains Financial, Inc. is a bank holding company
headquartered in Lubbock, Texas, and City Bank, SPFI’s wholly-owned banking subsidiary, is one of the largest independent banks in West Texas (“City Bank” or the “Bank”). The Company is hereafter collectively referred to as “we,” “us” or “our.”
We have additional banking operations in the Dallas, El Paso,
Greater Houston, the Permian Basin, and College Station, Texas markets, and the Ruidoso, New Mexico market. Through City Bank, we provide a wide range of commercial and consumer financial services to small and medium-sized businesses and
individuals in our market areas. Our principal business activities include commercial and retail banking, along with investment, trust and mortgage services.
We had total assets of $4.22 billion, gross loans held for
investment of $3.09 billion, total deposits of $3.63 billion, and total shareholders’ equity of $418.0 million as of June 30, 2024.
Our history dates back over 80 years. We trace our beginnings to
the founding of First State Bank of Morton, a community bank headquartered in West Texas that held approximately $1 million of total assets in 1941. In 1962, the bank was sold to new management, including J.K. Griffith, the father of our current
Chairman and Chief Executive Officer, Curtis C. Griffith. Since Mr. Griffith was elected Chairman of First State Bank of Morton in 1984, the Bank has transformed from a small-town institution with approximately $30 million in total assets and a
single branch location into one of the largest community banks in West Texas. The parent company to First State Bank of Morton acquired South Plains National Bank of Levelland, Texas in 1991 and changed its name to South Plains Bank. The Company
became the holding company to First State Bank of Morton and South Plains Bank in 1993, the same year we acquired City Bank. City Bank was originally established in Lubbock in 1984. We merged First State Bank of Morton and South Plains Bank into
City Bank in 1998 and 1999, respectively. We had more than $175 million in assets upon the closing of these acquisitions. We acquired West Texas State Bank, Odessa, Texas, with approximately $430 million in assets, in 2019 through the merger of
West Texas State Bank with and into the Bank.
We currently operate 25 full-service banking locations across
seven geographic markets resulting from six acquisitions, de novo branch establishments, and the formation of a de novo bank in Ruidoso, New Mexico, which we later merged into the Bank. We also operate 7 loan production offices both in our
banking markets and in certain key areas in Texas that focus on mortgage loan origination. We build long-lasting relationships with our customers by delivering high quality products and services and have sought to capitalize on the opportunities
presented by continued consolidation in the banking industry. We believe a major contributor to our historical success has been our focus on becoming the community bank of choice in the rural markets that we serve.
Our headquarters are located at 5219 City Bank Parkway, Lubbock,
Texas 79408. Our telephone number is (806) 792-7101. Our Internet website address is https://www.spfi.bank. The information contained in, or that can be accessed through, our website is not, and shall not be deemed to be, a part of, or
incorporated into, this prospectus or any prospectus supplement.
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An investment in our securities involves certain risks. Before
making an investment decision, you should carefully read and consider the risk factors set forth in our most recent Annual Report on Form 10-K under the heading “Risk Factors,” as well as any updated or additional disclosure about risk factors
included in any of our Quarterly Reports on Form 10-Q, Current Reports on Form 8-K or other filings that we have made with the SEC since the date of the latest Annual Report on Form 10-K that are incorporated by reference in this prospectus. You
should also carefully consider the risks and other information that may be contained in, or incorporated by reference into, any prospectus supplement relating to specific offerings of securities under the heading “Risk Factors.”
Additional risks and uncertainties of which we are not aware or
that we believe are not material at the time could also materially and adversely affect our business, financial condition, results of operations or liquidity. In any case, the value of the securities offered by means of this prospectus and any
applicable prospectus supplement could decline and you could lose all or part of your investment. See “Where You Can Find More Information” for information about how to obtain a copy of these documents.
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Unless otherwise indicated in the applicable prospectus
supplement, we expect to use the net proceeds from the sale of offered securities by us for general corporate purposes, which may include, among other things, investments in or advances to the Bank, working capital, capital expenditures, stock
repurchases, debt repayment or the financing of possible acquisitions.
The precise amounts and the timing of our use of the net proceeds
will depend upon market conditions, our subsidiary’s funding requirements, the availability of other funds and other factors. Until we use the net proceeds from an offering, we may place the net proceeds in temporary investments or hold the net
proceeds in deposit accounts at the Bank or another depository institution. We cannot predict whether the proceeds invested will yield a favorable return. We may, on a recurrent basis, engage in additional financings as the need arises to finance
our corporate strategies, to fund our subsidiaries, to finance acquisitions or otherwise.
The prospectus supplement with respect to an offering of offered
securities may identify different or additional uses for the proceeds of that offering.
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THE SECURITIES WE MAY OFFER
The descriptions of the offered securities contained in this
prospectus, together with the applicable prospectus supplements, summarize certain material terms and provisions of the various types of securities that we may offer. The particular material terms of the securities offered by a prospectus
supplement, to the extent not described in this prospectus, will be described in that prospectus supplement. If indicated in the applicable prospectus supplement, the terms of the offered securities may differ from the terms summarized below. The
prospectus supplement will also contain, where applicable, material U.S. federal income tax considerations relating to the offered securities, and will contain information regarding the securities exchange, if any, on which the offered securities
will be listed. The descriptions of our securities being offered appearing herein and in the applicable prospectus supplement do not contain all of the information that you may find useful or that may be important to you. You should refer to the
provisions of the actual documents that govern those securities and whose terms are summarized herein and in the applicable prospectus supplement, because those documents, and not the summaries, define your rights as holders of the relevant
securities. If any particular terms of a security described in the applicable prospectus supplement differ from any of the terms described in this prospectus, then the terms described in this prospectus will be deemed superseded by the terms set
forth in that prospectus supplement. For more information, please review the forms of these documents, which are or will be filed with the SEC and will be available as described under the heading “Where You Can Find More Information” above.
We may issue securities in book-entry form through one or more
depositaries, such as The Depository Trust Company (“DTC”), Euroclear or Clearstream, named in the applicable prospectus supplement. Each sale of a security in book-entry form will settle in immediately available funds through the applicable
depositary, unless otherwise stated. We will issue the securities in registered form, without coupons. If any securities are to be listed or quoted on a securities exchange or quotation system, the applicable prospectus supplement will say so.
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DESCRIPTION OF DEBT SECURITIES
The following description and any description
in a prospectus supplement is a summary only and is subject to, and qualified in its entirety by reference to the terms and provisions of the indentures and any supplemental indentures that we file with the SEC in connection with an issuance of
any series of debt securities. You should read all of the provisions of the indentures, including the definitions of certain terms, as well as any supplemental indentures that we file with the SEC in connection with the issuance of any series of
debt securities. These summaries set forth certain general terms and provisions of the securities to which any prospectus supplement may relate. The specific terms and provisions of a series of debt securities and the extent to which the general
terms and provisions may also apply to a particular series of debt securities will be described in the applicable prospectus supplement.
General
We may issue from time to time in one or more series senior debt
securities or subordinated debt securities, which in each case will be unsecured, direct, general obligations of the Company. For purposes of the descriptions under this heading “Description of Debt Securities,” we may refer to the senior debt
securities and the subordinated debt securities collectively as the “debt securities.”
We will issue senior debt securities under a senior debt
indenture and issue subordinated debt securities under a subordinated debt indenture. We refer to the senior debt indenture or subordinated debt indenture, together with any applicable supplemental indentures thereto, in this prospectus as an
“indenture” and collectively as the “indentures.” A copy of the form of each indenture has been filed with the SEC as an exhibit to the registration statement that includes this prospectus. The indentures permit one or more series of senior debt
securities or subordinated debt securities, as the case may be, to be established and issued thereunder. Any such series of senior debt securities or subordinated debt securities and their terms and conditions will be established by means of the
adoption of a supplemental indenture, the adoption of a resolution of our board of directors or the adoption of a resolution of our board of directors and the action of certain officers of the Company acting pursuant to authority delegated to
them by such resolution of the board and evidenced by an officers’ certificate setting forth the terms and conditions of the series of debt securities established by that resolution and the action of such authorized officers. Generally, multiple
series of debt securities will vary from one another with regard to the rate at which interest accrues on such debt securities and the term of such debt securities, and the senior debt securities and subordinated debt securities will vary from
one another with regard to the priority of payment.
Except as set forth in the indentures and described in the
prospectus supplements, the indentures do not limit the amount of senior debt securities or subordinated debt securities we may issue under the indentures. We are not required to issue all of the debt securities of one series at the same time
and, unless otherwise provided in an indenture and described in a prospectus supplement, we may, from time to time, issue additional debt securities under that series without the consent of the holders of the outstanding debt securities of that
series. Additional debt securities issued in this manner will have the same terms and conditions as the outstanding debt securities of that series, except for their original issue date and issue price, and will be consolidated with, and form a
single series with, the previously outstanding debt securities of that series. In certain instances, additional debt securities of a series sold may be issued with a different CUSIP number from that assigned to previously issued debt securities
of that issue.
The indentures will meet the requirements of the Trust Indenture
Act of 1939, as amended (the “Trust Indenture Act”), and will be qualified under and governed by the Trust Indenture Act.
We will file a copy of each supplemental indenture establishing a
series of debt securities and setting the respective series’ terms and conditions with the SEC in connection with the offer and sale of the first debt securities of such series to be offered and sold and will file the form of debt security
representing the debt securities of such series with the SEC in connection with the offering of such debt securities. Whenever we refer in this prospectus or in any prospectus supplement to particular sections or defined terms of an indenture,
those sections or defined terms are incorporated by reference in this prospectus or in the prospectus supplement, as applicable. You should refer to the provisions of the indentures for provisions that may be important to you.
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Terms and Conditions of Debt Securities to be Described in the
Prospectus Supplement
The prospectus supplement relating to any debt securities of a
series that we may offer will set forth the price or prices at which the debt securities will be offered to the public and the specific terms and conditions of the debt securities of that series to the extent such terms and conditions are not
described in this prospectus. The prospectus supplement will set forth the aggregate principal amount of the debt securities of a series being offered by means of such prospectus supplement and the price(s) (expressed as a percentage of the
principal amount) at which the debt securities will be offered and sold to the public. Each series of debt securities will be established and its terms and conditions set by a supplemental indenture. These terms and conditions of the debt
securities may include, without limitation, the following:
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the title and amount of the series of the debt securities and whether they are senior debt securities or subordinated debt
securities;
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any limit on the aggregate principal amount of the debt securities of such series that may be issued;
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the issue price or prices (which may be expressed as a percentage of the aggregate principal amount) of the securities;
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if other than the aggregate principal amount of those debt securities, the portion of the principal amount payable upon
declaration of acceleration of the maturity of the debt securities of the series;
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the maturity date or dates, or the method for determining the maturity date or dates, on which the principal of the debt
securities of the series will be payable and any rights of extension;
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the rate or rates, which may be fixed or variable, or the method of determining the rate or rates, at which the debt securities of
the series will bear interest, if any;
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the date or dates from which any interest will accrue on the debt securities of the series, the date or dates on which accrued
interest will be payable and the regular related record dates for the payment of accrued interest;
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the place or places where payments of principal, interest or premium, if any, will be payable, where the debt securities of the
series may be surrendered for registration of transfer or exchange, and where notices or demands to or upon us may be served;
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the period or periods within which, the price or prices at which, and the other terms and conditions upon which, the debt
securities of the series may be redeemed, in whole or in part, at our option, if we are to have such an option;
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the terms of the subordination of any series of debt securities;
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prepayment rights, if any, applicable to the debt securities of the series and any premium payable in connection with any such
prepayment;
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our obligation, if any, to redeem, repay or purchase the debt securities of the series pursuant to any sinking fund or analogous
provision or at the option of a holder of the debt securities, and the period or periods within which, or the date and dates on which, the price or prices at which, and the other terms and conditions upon which, the debt securities will
be redeemed, repaid or purchased, in whole or in part, pursuant to that obligation;
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whether the amount of payments of principal of and premium, if any, or interest, if any, on the debt securities of the series may
be determined with reference to an index, formula or other method, and the manner in which the amounts are to be determined;
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affirmative, negative and, in the case of our senior debt securities, financial covenants applicable with respect to the debt
securities of the series;
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any additions to, modifications of, or deletions from the terms of the debt securities of the series with respect to events of
default, amendments, merger, consolidation and sale or covenants set forth in the indenture;
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whether the debt securities of the series will be issued in certificated or book-entry form;
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whether any of the securities will be offered at a price such that they will be deemed to be offered at an “original issue
discount” as defined in paragraph (a) of Section 1273 of the Internal Revenue Code of 1986, as amended;
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the denomination of the debt securities of the series, if other than $1,000 and any integral multiple thereof;
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if other than U.S. currency, the currency or currency units in which principal, premium, if any, or interest will be payable,
whether we or a holder may elect payment to be made in a different currency and the designation of the original currency determination agent;
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if the debt securities of the series will be initially issuable in global form, the depository or its nominee with respect to the
debt securities, the circumstances under which the global security may be registered for transfer or exchange in the name of a person other than the depository or its nominee, or the manner in which any interest payable on a global
security will be paid;
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the conditions upon which definitive debt securities of the series will be issued to beneficial owners;
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the applicability, if any, of the discharge, defeasance and covenant defeasance provisions of the indenture to the debt securities
of the series and any additional or different terms on which such debt securities may be discharged or defeased;
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whether the debt securities of the series can be converted into or exchanged for other securities of the Company, and the related
terms and conditions, including, without limitation, the time and place at which such securities may be converted, the conversion price and any adjustments to the conversion price and any other provisions that may be applicable;
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in the case of our subordinated debt securities, provisions relating to any modification of the subordination provisions of the
subordinated debt securities of the series, which are described elsewhere in this prospectus;
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whether the debt securities of the series will be sold as part of units consisting of debt securities, common stock, preferred
stock, depositary shares and/or warrants;
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any provisions granting special rights to holders when a specified event occurs;
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any trustee, depositary, authenticating agent, paying agent, transfer agent, registrar or other agent with respect to the debt
securities of the series; and
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any other terms, preferences, rights or limitations of, or restrictions on, the debt securities of the series not inconsistent
with the provisions of its applicable indenture.
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Unless otherwise specified in the applicable prospectus
supplement relating to the debt securities of a particular series, the debt securities will not be listed on any securities exchange.
We may offer and sell our debt securities at a substantial
discount below their stated principal amount. The debt securities sold on that basis may be original issue discount (“OID”) securities, which means that less than the entire principal amount of the original issue discount securities will be
payable upon declaration of acceleration of their maturity. Special federal income tax, accounting and other considerations applicable to OID securities or relating to certain other kinds of securities that may be offered including securities
linked to an index, will be described in the applicable prospectus supplement.
For purposes of the descriptions under this “Description of Debt
Securities,” “subsidiary” means a corporation, a partnership, business or statutory trust, or a limited liability company a majority of the outstanding voting equity securities or a majority of the voting membership or partnership interests or
beneficial interests in a trust, as the case may be (collectively, referred to as “voting equity securities”), of which is owned or controlled, directly or indirectly, by us or by one or more of our other subsidiaries. For the purposes of this
definition, “voting equity securities” means securities having voting power for the election of directors, managers, managing partners or trustees, as the case may be, whether at all times or only so long as no senior class of stock has voting
power by reason of any contingency.
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Ranking of Debt Securities; Holding Company Structure
Senior Debt Securities
Except as otherwise provided in a supplemental indenture or
prospectus supplement, the senior debt securities of a series that we issue will be unsecured and will rank equally in right of payment of the principal of and premium, if any, and interest on such senior debt securities with all of our other
existing and future unsecured and unsubordinated debt, including the senior debt securities of any other series, and rank senior in right of payment to any subordinated debt.
Subordinated Debt Securities
Except as otherwise provided in a supplemental indenture or
prospectus supplement, subordinated debt securities will be unsecured and will be subordinated in right of payment to the prior payment in full of all of our senior indebtedness, including senior debt securities. We will state in the applicable
prospectus supplement relating to any subordinated debt securities the subordination terms of the securities as well as the aggregate amount of outstanding debt, as of the most recent practicable date, that by its terms would be senior to those
subordinated debt securities.
Structural Subordination
The debt securities will be the exclusive obligation of South
Plains Financial, Inc. Because the Company is a holding company, our cash flows and consequent ability to service our obligations, including both our senior debt securities and subordinated debt securities, are dependent on dividends,
distributions and other payments of earnings and other funds by our subsidiaries, particularly the Bank, to us. The payment of dividends and other distributions by our subsidiaries is contingent on their earnings and is subject to the
requirements of federal banking regulations and other restrictions. For example, various banking laws applicable to the Bank limit the payment of dividends and other distributions by the Bank to us, and may, therefore, limit our ability to pay
accrued interest owing on our outstanding senior debt securities and subordinated debt securities on any interest payment date or the principal of such senior debt securities and subordinated debt securities at their maturity. In addition, the
debt securities will be structurally subordinated to all indebtedness and other liabilities of our subsidiaries, because any right of the Company to receive any assets of its subsidiaries upon their liquidation or reorganization, and the
consequent right of the holders of the debt securities to participate in those assets, will be effectively subordinated to the claims of that subsidiary’s secured and unsecured creditors. If the Company itself is recognized as a creditor of that
subsidiary, our claims would still be subordinate to any security interest in the assets of that subsidiary and any indebtedness of that subsidiary senior to that held by the Company. Claims from creditors (other than us) on our subsidiaries may
include long-term and medium-term debt and substantial obligations related to deposit liabilities, federal funds purchased, securities sold under repurchase agreements, other short-term borrowings and trade payables. Any capital loans that we
make to the Bank would be subordinate in right of payment to deposits and to other indebtedness of the Bank.
Conversion or Exchange of Debt Securities
The applicable prospectus supplement will describe the terms, if
any, on which a series of debt securities may be converted into or exchanged for other of our securities. These terms will include whether conversion or exchange will be mandatory, at our option or at the option of the holder. We will also
describe in the applicable prospectus supplement relating to any such convertible or exchangeable debt securities how we will calculate the amount or number of our other securities that holders of debt securities would receive if they were to
convert or exchange their debt securities, the conversion price or exchange ratio and other terms related to conversion or exchange and any anti-dilution protections.
Redemption and Repurchase of Debt Securities
We may redeem the debt securities, in whole or in part, at the
prescribed redemption price, at the times and on the terms described in the applicable prospectus supplement. In addition, the debt securities may be subject to mandatory redemption pursuant to a sinking fund or otherwise, or may be subject to
repurchase by us at the option of the holders, in each case, upon the terms described in the applicable prospectus supplement.
Registration and Transfer
Unless otherwise indicated in the applicable prospectus
supplement, each series of the offered securities will be issued in registered form only, without coupons. No service charge will be made for any transfer or exchange
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of the securities, but we may require payment of an amount sufficient to cover
any tax or other governmental charge payable in connection with a transfer or exchange.
Payment and Paying Agent
Unless otherwise indicated in a prospectus supplement, the debt
securities will be payable as to principal, interest and any premium in the designated currency or currency unit at the office of a designated paying agent. At our option, payment of interest on fully registered securities may also be made by
check mailed to the persons in whose names the securities are registered on the days specified in the indentures or any prospectus supplement.
The designated paying agent in the United States for the
securities we are offering is provided in the indentures that are or will be deemed incorporated by reference into this prospectus.
Same-Day Settlement
Unless otherwise provided in the applicable prospectus
supplement, the debt securities will trade in the same-day funds settlement system in the United States until maturity. Purchases of debt securities in secondary market trading must be settled in immediately available funds. We can give no
assurance as to the effect, if any, of settlement in immediately available funds on trading activity in the debt securities.
Denomination, Registration and Transfer
Unless otherwise specified in the applicable prospectus
supplement, we will issue the debt securities of a series in denominations of $1,000 and any integral multiples thereof.
Subject to limitations imposed upon debt securities issued in
book-entry form, the holder may exchange debt securities of any series for other debt securities of the same series and of a like aggregate principal amount and tenor but in different, authorized denominations upon surrender of the debt
securities at the corporate trust office of the applicable trustee. In addition, subject to limitations imposed upon debt securities issued in book-entry form, the holder may surrender debt securities of any series for registration of transfer or
exchange at the corporate trust office of the applicable trustee. Every debt security surrendered for registration of transfer or exchange must be duly endorsed or accompanied by a written instrument of transfer. No service charge will be imposed
for any registration of transfer or exchange, redemption or conversion of any debt securities, but we may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with any registration of transfer or
exchange of any debt securities.
Merger, Consolidation or Sale of Assets
We will not be permitted to consolidate with or merge into any
other entity, or sell, lease, transfer or convey all or substantially all of our properties and assets, either in one transaction or a series of transactions, to any other entity and no other entity will consolidate with or merge into us, or
sell, lease, transfer or convey all or substantially all of its properties and assets to us unless:
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the Company is the continuing entity; or
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the successor entity, if other than the Company, formed by or resulting from any consolidation or merger, or which has received
the transfer of our properties and assets, expressly assumes payment of the principal of, and premium, if any, and interest on all of the outstanding debt securities and the due and punctual performance and observance of all of the
covenants and conditions contained in the applicable indenture; and
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immediately after giving effect to the transaction and treating any indebtedness that becomes our obligation as a result of that
transaction as having been incurred by us at the time of the transaction, no event of default under the applicable indenture, and no event which, after notice, the lapse of time or both, would become an event of default will have occurred
and be continuing.
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The conditions described in (1) and (2) above would not apply to
the direct or indirect transfer of the stock, assets or liabilities of any of our subsidiaries to another of our direct or indirect subsidiaries.
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Except as provided in this prospectus or as may otherwise be
provided in the applicable prospectus supplement, the applicable indenture and the terms of the debt securities will not contain any event risk or similar covenants that are intended to afford protection to holders of any debt securities in the
event of a merger, a highly leveraged transaction or other significant corporate event involving us or our subsidiaries, whether or not resulting in a change of control, which may adversely affect holders of the debt securities.
Events of Default; Right to Accelerate
Unless otherwise indicated in the applicable prospectus
supplement, the following are events of default under the senior debt indenture with respect to the senior debt securities and under the subordinated debt indenture with respect to the subordinated debt securities:
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failure to pay any installment of interest payable on any debt security of the series and the continuance of such failure for a
period of 30 days;
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failure to pay principal of, or premium, if any, on, any debt security of the series when due, whether at maturity, upon
redemption, by declaration of acceleration of maturity or otherwise;
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default in making any sinking fund payment when due, for any debt security of the series;
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failure to deliver the required securities, together with cash in lieu of fractional securities, or other rights upon an
appropriate conversion or exchange election by any holder of convertible securities, and continuance of such default for a period of 10 days;
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default in the observance or performance of any other covenants or agreements of the Company contained in any resolution of the
Company authorizing the issuance of the debt securities, in the indentures with respect to the debt securities, or in any supplemental indenture with respect to such debt securities continuing for 90 days after written notice as provided
in the indentures with respect to the debt securities;
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specified events of bankruptcy, insolvency or reorganization; or
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such other events of default as are described in the prospectus supplement relating to any series of debt securities being offered
for sale.
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Unless otherwise indicated in the applicable prospectus
supplement, if an event of default occurs and is continuing because we experience specified events of bankruptcy, insolvency or reorganization, the aggregate principal amount of the debt securities will be automatically accelerated and become
immediately due and payable, without any action by the trustee or any holder. Unless otherwise indicated in the applicable prospectus supplement, if any other event of default occurs and is continuing for any series of debt securities, unless the
aggregate principal amount of all debt securities of that particular series has already become due and payable, the indenture trustee or the holders of not less than 25% in aggregate principal amount of the outstanding debt securities of that
series may declare all amounts, or any lesser amount provided for in the debt securities of that series, to be immediately due and payable. Upon such a declaration, the principal of (or such lesser amount as may be provided for in the terms of
the debt securities of that series) and all accrued and unpaid interest on such debt securities will become immediately due and payable upon notice of such declaration being given in writing to the Company and, if the acceleration is by the
holders, the trustee. At any time after a declaration of acceleration with respect to the debt securities of a series has been made, but before a judgment or decree for payment of the money due has been obtained, the holders of a majority in
aggregate principal amount of outstanding debt securities of that series may rescind and annul the consequences of the event of default, but only if certain conditions have been satisfied.
Collection of Indebtedness
If an event of default relating to our failure to pay interest or
principal, to make a sinking fund or analogous payment occurs with respect to the debt securities of a series issued under an indenture, we must pay to the applicable trustee for the benefit of the holders of the affected debt securities the
amount of the principal of, and premium, if any, and accrued and unpaid interest on, such debt securities and, to the extent legally enforceable, interest on any such overdue amounts at the rate determined as prescribed in the terms of such debt
securities. If we fail to pay such amounts, the applicable trustee may institute a suit against us to collect the amounts due and payable. The trustee will not be obligated to exercise any of its rights or powers at the request of the holders,
unless the holders have offered to the trustee reasonable indemnity satisfactory to it.
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Limitations on Suits by Holders
Except to enforce the right to receive payment of principal,
premium, if any, or interest, when due, holders of debt securities will have no right to institute any proceeding, judicial or otherwise, with respect to the indentures, or for the appointment of a receiver or trustee, or for any other remedy
under the indentures 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 applicable
debt securities;
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the holders of not less than 25% in principal amount of the applicable debt securities shall 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 applicable indenture;
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such holder or holders have offered to the trustee reasonable security or 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 security or 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 principal amount of the outstanding debt securities.
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In any event, the applicable indenture provides that no one or
more of such holders of the debt securities of a series will have any right under such indenture to affect, disturb or prejudice the rights of any other holder of debt securities of any series issued under such indenture, or to obtain priority or
preference over any of the other holders or to enforce any right under such indenture, except in the manner provided in the indenture and for the equal and ratable benefit of all holders of debt securities issued under that indenture.
Waiver
Each indenture provides that the holders of not less than a
majority in principal amount of the outstanding debt securities of any series issued under that indenture may waive any past default with respect to that series and its consequences, except a default:
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in the payment of the principal of, or premium, if any, or interest on any debt security of that series; or
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in respect of a covenant or provision contained in that indenture that, by the terms of the indenture, cannot be modified or
amended without the consent of each affected holder of an outstanding debt security.
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Notice of Defaults
The trustee will be required to give notice to the holders of the
applicable debt securities within 90 days of a default under the applicable indenture unless the default has been cured or waived; but the trustee may withhold notice of any default, except a default in the payment of the principal of, or
premium, if any, or interest on the debt securities or in the payment of any sinking fund installment in respect of the debt securities, if specified responsible officers of the trustee consider the withholding to be in the interest of the
holders.
Subject to the trustee’s duties in case of default, no trustee
will be under any obligation to exercise any of its rights or powers under the indenture at the request or direction of any holders of debt securities of a series then outstanding under the applicable indenture unless the holders offer to the
trustee reasonable security or indemnity. Subject to such provisions for the indemnification of the trustee, the holders of not less than a majority in aggregate principal amount of the outstanding debt securities of any series issued under the
indenture will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the applicable trustee or of the applicable trustee exercising any trust or power conferred upon the trustee. A trustee
may refuse, however, to follow any direction that is in conflict with any law or the indenture that may involve the trustee in personal liability or may be unduly prejudicial to the holders of debt securities of that series not joining in the
direction.
Within 120 days after the end of each fiscal year, we will be
required to deliver to each trustee a certificate, signed by one of several specified officers, stating whether or not that officer has knowledge of any default under the indenture and, if so, specifying each default and the nature and status of
the default.
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Modification of an Indenture
Except as otherwise specifically provided in the applicable
indenture, with the consent of the holders of not less than a majority in principal amount of all outstanding debt securities issued under the indenture that are affected by the modification or amendment, we may enter into supplemental indentures
with the trustee for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the indenture or of modifying in any manner the rights of the holders of debt securities issued under the indenture.
However, no modification or amendment may, without the consent of the holder of each debt security affected by the modification or amendment:
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change the stated maturity of the principal of, or any installment of interest, or the premium, if any, on, any debt security;
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reduce the percentage in principal amount of, or the rate at which interest accrues under, amount of interest on, or change the
manner of calculating the rate, or any premium payable on redemption of, any debt security, or reduce the amount of principal of an original issue discount security that would be due and payable upon declaration of acceleration of its
maturity or would be provable in bankruptcy, or adversely affect any right of repayment of the holder of any debt security;
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extend the time of payment of interest on any debt security;
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change any of the conversion, exchange or redemption provisions, including decreasing the conversion rate or increasing the
conversion price of, any debt security;
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change the place of payment, or the coin or currency for payment, of principal of, or premium, if any, including any amount in
respect of original issue discount or interest on any debt security;
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impair the right to institute suit for the enforcement of any payment on or with respect to any debt security or for the
conversion or exchange of any debt security in accordance with its terms;
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modify the ranking or priority of the securities in a manner adverse to the holders of any debt security;
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reduce the percentage of outstanding debt securities of any series necessary to modify or amend the indenture, to waive compliance
with specific provisions of or certain defaults and consequences under the indenture, or to reduce the quorum or voting requirements set forth in the indenture; or
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modify any of the provisions relating to the waiver of specific past defaults or compliance with specific covenants, except to
increase the required percentage to effect that action or to provide that specific other provisions may not be modified or waived without the consent of the holder of that debt security.
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The holders of not less than a majority in principal amount of
the outstanding debt securities of each series affected by any such modification or amendment will have the right to waive our compliance with specific covenants in the indenture.
We and the trustee may modify and amend the applicable indenture
without the consent of the holders of debt securities for any of the following purposes:
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to evidence the succession of another person to us as obligor under the indenture;
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to add to our covenants binding us for the benefit of the holders of all or any series of debt securities issued under the
indenture or to surrender any right or power conferred upon us in the indenture;
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to add to or change any of the provisions of the indenture to such extent as shall be necessary to permit or facilitate the
issuance of debt securities in uncertificated or global form;
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to establish the form or terms of debt securities of any series to be issued under the indenture;
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to provide for the acceptance of appointment by a successor trustee or facilitate the administration of the trusts under the
indenture by more than one trustee;
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to cure any ambiguity, omission, defect or inconsistency in the indenture provided that the cure or correction does not adversely
affect the holders of the debt securities issued under the indenture;
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to add to, delete from or revise the conditions, limitations or restrictions on issue, authentication and delivery of debt
securities to be issued under the indenture in the future;
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to add any additional events of default for the benefit of the holders of all or any series of debt securities issued under the
indenture;
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to secure the debt securities of any series issued under the indenture;
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to conform any provision in the indenture to the requirements of the Trust Indenture Act;
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to make any change that does not adversely affect the legal rights under the indenture of any holder of debt securities of any
series issued under the indenture;
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to make provisions with respect to the conversion or exchange terms and conditions applicable to the debt securities of any series
issued under the indenture;
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to change or eliminate any provision of the indenture, provided that any such addition, change or elimination (a) shall neither
(1) apply to any debt security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (2) modify the rights of the holder of any such debt security with respect to
such provision or (b) shall become effective only when there is no debt security described in clause (a)(1) outstanding; or
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in the case of any subordinated debt security, to make any change in the subordinated provisions that limits or terminates the
benefits applicable to the holder of any senior debt.
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Calculation of Outstanding Debt Securities
In determining whether the holders of the requisite principal
amount of outstanding debt securities of a series have given any request, demand, authorization, direction, notice, consent or waiver under the indenture governing such series of debt securities or whether a quorum is present at a meeting of
holders of debt securities of such series:
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the aggregate principal amount of an original issue discount security that is deemed to be outstanding will be the amount of the
principal of that original issue discount security that would be due and payable as of the date of the determination upon declaration of acceleration of the maturity of that original issue discount security;
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the aggregate principal amount of an indexed security that is deemed outstanding will be the principal face amount of the indexed
security at original issuance, unless otherwise provided with respect to the indexed security under the indenture; and
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debt securities owned by us or any other obligor upon the debt securities or any affiliate of us or of any other obligor will be
disregarded.
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Discharge, Defeasance and Covenant Defeasance
Discharge
We are permitted under each indenture to discharge specific
obligations to holders of any series of debt securities issued under the indenture (1) that have not already been delivered to the applicable trustee for cancellation and (2) that either have become due and payable or will, within one year,
become due and payable or scheduled for redemption, by irrevocably depositing with the applicable trustee, in trust, money or funds certified to be sufficient to pay when due, whether at maturity, upon redemption or otherwise, the principal of,
and premium, if any, on and interest on the debt securities of one or more series.
Defeasance and Covenant Defeasance
If the provisions in an indenture relating to defeasance and
covenant defeasance are made applicable to the debt securities of any series issued under that indenture, we may elect either:
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defeasance, which means we elect to defease and be discharged from any and all obligations with respect to the debt securities of
a series, except for the obligations to register the transfer or exchange of the debt securities, to replace temporary or mutilated, destroyed, lost or stolen debt securities, to maintain an office or agency in respect of the debt
securities and to hold moneys for payment in trust; or
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covenant defeasance, which means we elect to be released from our obligations with respect to the debt securities under specified
sections of the indenture relating to covenants, as described in the applicable prospectus supplement and any omission to comply with our obligations will not constitute an event of default with respect to the debt securities being
defeased; in either case upon the irrevocable deposit by us with the applicable trustee, in trust, of an amount, in currency or government obligations, or both, sufficient without reinvestment to make scheduled payments of the principal
of, and premium, if any, and interest on such debt securities, when due, whether at maturity, upon redemption or otherwise, and any mandatory sinking fund or analogous payments.
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A trust will only be permitted to be established under an
indenture if, among other things:
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we have delivered to the applicable trustee an opinion of counsel, as specified in the applicable indenture, to the effect that
the holders of the debt securities being defeased will not recognize income, gain or loss for federal income tax purposes as a result of the defeasance or 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 the defeasance or covenant defeasance had not occurred, and the opinion of counsel, in the case of defeasance, will be required to refer to and be based upon a ruling
of the Internal Revenue Service or a change in applicable U.S. federal income tax law occurring after the date of the indenture;
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no event of default or any event which after notice or lapse of time or both would be an event of default has occurred and is
continuing;
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the defeasance or covenant defeasance will not result in a breach or violation of, or constitute an event of default under, the
indenture, any senior debt or any other material agreement or instrument to which the Company is a party or by which it is bound;
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certain other provisions set forth in the applicable indenture are met;
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we will have delivered to the trustee an officers’ certificate and an opinion of counsel, each stating that all conditions
precedent to the defeasance or covenant defeasance have been complied with; and
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in the case of the subordinated debt indenture, no event or condition will exist that, pursuant to certain provisions described
under “—Ranking—Subordinated Debt Securities,” would prevent the Company from making payments of principal of and premium, if any, and interest on the subordinated debt securities being defeased at the date of the irrevocable deposit
referred to above.
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In general, if we elect covenant defeasance with respect to any
debt securities and payments on those debt securities are declared due and payable because of the occurrence of an event of default, the amount of money and/or government obligations on deposit with the applicable trustee would be sufficient to
pay amounts due on those debt securities at the time of their stated maturity, but may not be sufficient to pay amounts due on those debt securities at the time of the acceleration resulting from the event of default. In that case, we would
remain liable to make payment of the amounts due on the debt securities at the time of acceleration.
In the event we properly discharge and satisfy or effect a
defeasance or covenant defeasance with respect to any subordinated debt securities, the subordination provisions of those subordinated debt securities will cease to cause those subordinated debt securities to be subordinate in right of payment to
the payment in full of the senior indebtedness as defined for purposes of those subordinated debt securities. In such a circumstance, the funds or government obligations deposited in trust with the applicable trustee in connection with such
discharge and satisfaction, defeasance or covenant defeasance may be applied to the payment of the principal of, and premium, if any, and interest on, the subordinated debt securities discharged and satisfied or the subject of defeasance or
covenant defeasance prior to any or all of the senior indebtedness being paid in full.
A prospectus supplement by which we offer for sale debt
securities of a particular series may further describe the provisions, if any, permitting defeasance or covenant defeasance, including any modifications to the provisions described above, with respect to the debt securities of or within such
particular series.
Regarding the Trustee
The applicable prospectus supplement will specify the trustee for
the particular series of debt securities to be issued under the indentures.
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The trustee will meet the requirements of the Trust Indenture
Act for trustees under indentures being qualified under the Trust Indenture Act. At all times, the trustee must be a corporation organized and doing business under the laws of the United States or any state or territory thereof or of the District
of Columbia, with authority to exercise corporate trust powers, be subject to the supervision or examination by federal, state, territorial or District of Columbia authority, have at all times a combined capital and surplus of not less than
$50,000,000 and not be the Company or any person directly or indirectly controlled or controlled by or under common control with the Company.
If the trustee acquires any conflicting interest, as defined in
the Trust Indenture Act, with respect to the debt securities, within 90 days after the trustee has or acquired a conflicting interest, which has not been cured or waived, the trustee would generally be required by the Trust Indenture Act to
eliminate that conflicting interest or resign as trustee with respect to the debt securities issued under the applicable indenture. If the trustee resigns, we are required to promptly appoint a successor trustee with respect to the affected
securities. The trustee and/or certain of its affiliates may provide banking, investment and other services to us.
The trustee has two main roles under the indentures. First, the
trustee can enforce your rights against us if an event of default occurs with respect to any debt securities. See “—Limitations on Suits by Holders” and “—Notice of Defaults” for certain information regarding the rights of the trustee upon the
occurrence of an event of default. Second, the trustee performs certain administrative duties related to the debt securities of each series for us. The trustee is entitled, subject to the duty of the trustee during a default to act with the
required standard of care, to be indemnified by the holders of the debt securities before proceeding to exercise any right or power under the applicable indenture at the request of those holders.
The trustee may resign or be removed as the trustee under an
indenture, and a successor trustee may be appointed by us or by the holders holding a majority in aggregate principal amount of the debt securities outstanding under the applicable indenture to act with respect to all of the debt securities
outstanding under the applicable indenture. If the trustee resigns or is removed as trustee under one of the indentures, it may continue to serve as the trustee under the other indenture unless it resigns or is removed as trustee under the other
indenture.
If two or more persons are acting as trustee with respect to
different series of debt securities, each trustee will be a trustee of a trust under that indenture separate from the trust administered by any other such trustee as to a separate series of debt securities issued under that indenture. Except as
otherwise indicated in this prospectus or the applicable prospectus supplement, a trustee may only take an action with respect to the debt securities of the particular series of debt securities for which it is trustee under an indenture.
Global Securities
We may issue the debt securities of a series in whole or in part
in the form of one or more global securities to be deposited with, or on behalf of, a depository or with a nominee for a depository identified in the applicable prospectus supplement relating to that series. We will issue global securities in
registered form and in either temporary or permanent form. The specific terms of the depository arrangement with respect to a series of debt securities will be described in the prospectus supplement relating to that series.
Our obligations with respect to the debt securities of any
series, as well as the obligations of the applicable trustee with respect to the debt securities of such series, run only to persons who are registered holders of debt securities. For example, once we make payment to the registered holder, we
have no further responsibility for that payment even if the recipient is legally required to pass the payment along to an individual investor but fails to do so. As an indirect holder, an investor’s rights relating to a global security will be
governed by the account rules of the investor’s financial institution and of the depositary and/or participant of the depositary, as well as general laws relating to transfers of debt securities.
The applicable prospectus supplement for a series of debt
securities will list the special situations, if any, in which a global security will be exchanged for physical certificates representing debt securities represented by the global securities. After that exchange, the investor may choose whether to
hold debt securities directly or indirectly through an account at the investor’s bank or brokerage firm. In that event, investors must consult their banks or brokers to find out how to have their interests in debt securities transferred to their
own names so that they may become direct holders. When a global security is exchanged for physical certificates, the depositary, and not us or one of the trustees, is responsible for deciding the names of the institutions that will be the initial
direct holders of the debt securities represented by the global security.
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Depository Trust Company
DTC has advised us of the following information: DTC is a
limited-purpose trust company organized under the New York Banking Law, a “banking organization” within the meaning of the New York Banking Law, a member of the Federal Reserve System, a “clearing corporation” within the meaning of the New York
Uniform Commercial Code and a “clearing agency” registered pursuant to the provisions of Section 17A of the Exchange Act. DTC holds securities that its direct participants deposit with DTC. DTC also facilitates the post-trade settlement among
participants of sales and other securities transactions in deposited securities, through electronic computerized book-entry transfers and pledges between participants’ accounts. This eliminates the need for physical movement of securities
certificates. Direct participants include both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, clearing corporations, and certain other organizations. DTC is a wholly owned subsidiary of The Depository Trust &
Clearing Corporation, which, in turn, is owned by a number of direct participants of DTC. Access to the DTC system is also available to others, referred to as indirect participants, such as both U.S. and non-U.S. securities brokers and dealers,
banks, trust companies, and clearing corporations that clear through or maintain a direct or indirect custodial relationship with a direct participant. The rules applicable to DTC and its participants are on file with the SEC.
Beneficial interests in a global security representing
outstanding debt securities of a series will be shown on, and transfers of beneficial interests in the global security will be made only through, records maintained by DTC and DTC participants. When you purchase our debt securities through the
DTC system, the purchases must be made by or through a direct DTC participant, which will receive credit for the debt securities in its account on DTC’s records. When you actually purchase the debt securities, you will become their beneficial
owner and your ownership interest will be recorded only on the records of the DTC participants. DTC will have no knowledge of your individual ownership of the debt securities. DTC’s records will show only the identity of the direct DTC
participants and the amount of the debt securities held by or through them. When you purchase debt securities through the DTC system, you will not receive a written confirmation of your purchase or sale or any periodic account statement directly
from DTC. You should instead receive these confirmations and account statements from the DTC participant through which you purchase the debt securities. The DTC participants are responsible for keeping accurate account of the holdings of their
customers.
The trustee and we will treat DTC or its nominee as the owner of
each global security registered in the name of DTC or its nominee for all purposes. Accordingly, the trustee will wire payments on the debt securities to the DTC nominee that is the registered holder of the debt securities. It is DTC’s current
practice, upon receipt of any payment of distributions or liquidation amounts due on a global security, to proportionately credit direct DTC participants’ accounts on the payment date based on their holdings of the relevant securities. Payments
to you with respect to your beneficial interest in any debt securities in turn will be the responsibility of the DTC participants based on their respective customary practices, and the trustee, any paying agent and we will have no direct
responsibility or liability to pay amounts due on a global security to you or any other beneficial owners in that global security. Any redemption notices likewise will be sent by us or, at our request, by the trustee directly to DTC, which in
turn will inform the DTC participants, which will then contact you as a beneficial holder. In addition, it is DTC’s current practice to pass through any consenting or voting rights to the direct DTC participants by using an omnibus proxy. Those
direct DTC participants should, in turn, solicit votes and consents from you, the ultimate owner of debt securities, based on their respective customary practices.
Under the rules, regulations and procedures creating and
affecting DTC and its operations, DTC is required to make book-entry transfers between direct DTC participants on whose behalf it acts with respect to the debt securities and is required to receive and transmit distributions of principal of and
premium, if any, and interest on the debt securities. DTC participants with which investors have accounts with respect to the debt securities similarly are required to make book-entry transfers and receive and transmit payments on behalf of their
respective investors.
Because DTC can only act on behalf of direct DTC participants,
who in turn act on behalf of indirect DTC participants and certain banks, the ability of a person having a beneficial interest in a security held in DTC to transfer or pledge that interest to persons or entities that do not participate in the DTC
system, or otherwise take actions in respect of that interest, may be affected by the lack of a physical certificate representing that interest. The laws of some states of the United States require that certain persons take physical delivery of
securities in certificated form in order to transfer or perfect a security interest in those securities. Consequently, the ability to transfer beneficial interests in a security held in DTC to those persons may be limited.
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DTC has advised us that it will take any action permitted to
be taken by a holder of debt securities under the terms and conditions of the debt securities (including, without limitation, the presentation of debt securities for exchange) only at the direction of one or more of the direct DTC participants to
whose accounts with DTC interests in the relevant debt securities are credited, and only in respect of the portion of the aggregate principal amount of the debt securities as to which that direct DTC participant has or those direct DTC
participants have given the direction. However, in certain circumstances described below under “—Certificated Debt Securities” below, DTC will exchange the global securities held by it for certificated debt securities, which it will distribute to
the direct DTC participants.
Certificated Debt Securities
Debt securities represented by one or more global securities will
be exchangeable for certificated debt securities with the same terms in authorized denominations only if:
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DTC is unwilling or unable to continue as depositary or ceases to be a clearing agency registered under applicable law, and a
successor is not appointed by us within 90 days; or
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we decide to discontinue the book-entry system; or
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an event of default has occurred and is continuing with respect to the applicable debt securities.
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If a global security is exchanged for certificated debt
securities, the trustee will keep the registration books for the applicable debt securities at its corporate office and follow customary practices and procedures regarding those certificated debt securities.
Governing Law
Unless indicated otherwise in the applicable prospectus
supplement, the debt securities of each series and the indenture will be governed by, and construed in accordance with, the internal laws of the State of New York.
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DESCRIPTION OF COMMON STOCK
The following summary describes the material
features and rights of our common stock. This summary does not purport to be a complete description of the terms and conditions of our common stock in all reports and is subject to, and qualified in its entirety by, applicable law and the
provisions of our Amended and Restated Certificate of Formation (“Certificate of Formation”) and Second Amended and Restated Bylaws (“Bylaws”).
General
Our authorized capital stock consists of 31,000,000 shares, of
which 30,000,000 shares are common stock, par value $1.00 per share, and 1,000,000 shares are preferred stock, par value $1.00 per share. Our outstanding shares of common stock are, and the shares of common stock to be issued in this offering
will be, validly issued, fully paid and non-assessable. As of September 27, 2024, there were 16,386,627 shares of our common stock outstanding, held by approximately 168 registered shareholders, and no shares of our preferred stock were
outstanding. As of September 27, 2024, there were 1,489,481 shares of our common stock underlying options and restricted stock units that have been issued pursuant to our equity incentive plans and 3,411,104 shares of our common stock reserved
for future issuance under our equity incentive plans. Our common stock is listed for trading on the Nasdaq Global Select Market under the symbol “SPFI.”
Each share of our common stock has the same relative rights and
is identical in all respects to every other share of our common stock. Our shares of common stock are neither redeemable nor convertible, and the holders thereof have no preemptive or subscription rights to purchase any of our securities.
Voting Rights
Each outstanding share of our common stock is entitled to one
vote on all matters submitted to a vote of shareholders, except as otherwise required by law and subject to the rights and preferences of the holders of any shares of preferred stock that we may issue. Our Certificate of Formation does not
provide for cumulative voting in the election of directors. Directors are elected by the affirmative vote of the holders of a majority of the shares of common stock entitled to vote in the election of directors and represented in person or by
proxy at a meeting of shareholders at which a quorum is present.
Liquidation Rights
Upon any liquidation, dissolution or winding up of the Company,
after the payment of all liabilities and of the liquidation preferences with respect to any issued and outstanding preferred shares, or any other class or series of stock having preference over the common stock, we will distribute our remaining
assets to the holders of our voting common stock on a pro rata basis.
Dividends Payable on Shares of Common Stock
Subject to certain regulatory restrictions discussed in or
incorporated by reference into this prospectus and to the rights of preferred stock we may issue in the future, or any other class or series of stock having a preference as to dividends over the common stock, each share of common stock will
participate equally in dividends, which are payable from legally available funds when, as, and if declared by our board of directors. Further, the agreements pursuant to which we borrow money and the regulations to which we are subject as a bank
holding company may limit our ability to pay dividends or other distributions with respect to the common stock or to repurchase our capital stock. The board of directors has the discretion to determine the amount of dividends to be paid.
Ranking
Upon liquidation, dissolution or winding up, the holders of
common stock are entitled to receive ratably the assets available for distribution to the shareholders after payment of liabilities and accumulated and unpaid dividends and liquidation preferences on outstanding preferred stock, if any.
Absence of Preemptive Rights
Our common stock does not have preemptive rights or other rights
to subscribe for additional shares.
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Stock Exchange Listing
Our common stock is listed on the Nasdaq Global Select Market
under the symbol “SPFI.”
Transfer Agent and Registrar
Broadridge Corporate Issuer Solutions, Inc. is the transfer
agent and registrar for our common stock.
Business Combinations under Texas Law
A number of provisions of Texas law and our certificate of
formation and bylaws could have an anti-takeover effect and make any potential acquisition of our organization by means of a tender offer, a proxy contest or otherwise and the removal of incumbent directors more difficult. These provisions are
intended to discourage coercive takeover practices and inadequate takeover bids and to encourage persons seeking to acquire control of our company to negotiate first with our board of directors.
We are subject to the provisions of Title 2, Chapter 21,
Subchapter M of the TBOC, which provides that a Texas corporation that qualifies as an “issuing public corporation” (as defined in the Texas Business Combination Law) may not engage in specified types of “business combinations” with a person, or
an affiliate or associate of that person, who is an “affiliated shareholder.” For purposes of this law, a “business combination” is defined generally to include: mergers or share exchanges; dispositions of assets having an aggregate value equal
to 10% or more of the market value of the assets or of the outstanding common stock or representing 10% or more of the earning power or net income of the corporation; certain issuances or transactions by the corporation that would increase the
affiliated shareholder’s number of shares of the corporation; certain liquidations or dissolutions; and the receipt of tax, guarantee, loan or other financial benefits by an affiliated shareholder of the corporation. For purposes of this law, an
“affiliated shareholder” is, or was, during the prior three years, the beneficial owner of 20% or more of the corporation’s voting shares. The prohibition on certain transactions with such affiliated shareholders extends for a three-year period
from the date such shareholder first becomes an affiliated shareholder. These prohibitions do not apply if:
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the business combination or the acquisition of shares by the affiliated shareholder was approved by the board of directors of the
corporation before the affiliated shareholder became an affiliated shareholder; or
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the business combination was approved by the affirmative vote of the holders of at least two-thirds of the outstanding voting
shares of the corporation not beneficially owned by the affiliated shareholder or an affiliate or associate of the affiliated shareholder, at a meeting of shareholders called for that purpose, not less than six months after the affiliated
shareholder became an affiliated shareholder.
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As we currently have more than 100 shareholders, we are
considered an “issuing public corporation” for purposes of this law. The Texas Business Combination Law does not apply to the following:
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the business combination of an issuing public corporation: where the corporation’s original certificate of formation or bylaws
contain a provision expressly electing not to be governed by the Texas Business Combination Law; or that adopts an amendment to its certificate of formation or bylaws, by the affirmative vote of the holders, other than affiliated
shareholders or an affiliate or associate of the affiliated shareholder, of at least two-thirds of the outstanding voting shares of the corporation, expressly electing not to be governed by the Texas Business Combination Law and so long
as the amendment does not take effect for 18 months following the date of the vote and does not apply to a business combination with an affiliated shareholder who became affiliated on or before the effective date of the amendment;
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a business combination of an issuing public corporation with an affiliated shareholder that became an affiliated shareholder
inadvertently, if the affiliated shareholder divests itself, as soon as practicable, of enough shares to no longer be an affiliated shareholder and would not at any time within the three-year period preceding the announcement of the
business combination have been an affiliated shareholder but for the inadvertent acquisition;
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a business combination with an affiliated shareholder who became an affiliated shareholder through a transfer of shares by will or
intestacy and continuously was an affiliated shareholder until the announcement date of the business combination; and
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a business combination of a corporation with its wholly-owned subsidiary, if the subsidiary is a Texas entity and not an affiliate
or associate of the affiliated shareholder other than by reason of the affiliated shareholder’s beneficial ownership of voting shares of the corporation.
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Neither our Certificate of Formation nor our Bylaws contains any
provision expressly providing that we will not be subject to the Texas Business Combination Law. As a result, the Texas Business Combination Law may prevent a non-negotiated merger or other business combination involving us, even if such a merger
or combination would be beneficial to our shareholders.
Certain Certificate of Formation and Bylaw Provisions Potentially
Having an Anti-Takeover Effect
General. Our Certificate of Formation and Bylaws may have the effect of discouraging, delaying or preventing a change in control or an unsolicited acquisition proposal that a shareholder might consider
favorable, including a proposal that might result in the payment of a premium over the market price for the shares held by a shareholder. These provisions are summarized in the following paragraphs.
Certain provisions of the Texas Business Organizations Code (the
“TBOC”) found at Section 21.602 through Section 21.610 relating to business combinations with affiliates may have the effect of deterring hostile takeovers or delaying or preventing control or management of a company.
Authorized Shares of
Capital Stock. As of the date of this document, we had 13,613,373 shares of authorized but unissued shares of common stock and 1,000,000 shares of authorized but unissued shares of preferred
stock. Our board of directors may authorize the issuance of one or more series of preferred stock without shareholder approval. These shares could be used by our board of directors to make it more difficult or to discourage an attempt to obtain
control of us through a merger, tender offer, proxy contest or otherwise.
Preferred Stock. Our Certificate of Formation contain provisions that permit our board of directors to issue, without any further vote or action by the shareholders, shares of preferred stock in one or more
series and, with respect to each such series, to fix the number of shares constituting the series and the designation of the series, the voting rights (if any) of the shares of the series, and the powers, preferences and relative,
participation, optional and other special rights, if any, and any qualifications, limitations or restrictions, of the shares of such series. Although the creation and authorization of preferred stock does not, in and of itself, have any effect
on the rights of the holders of our common stock, the issuance of one or more series of preferred stock may affect the holders of common stock in a number of respects, including the following: by subordinating our common stock to the preferred
stock with respect to dividend rights, liquidation preferences, and other rights, preferences, and privileges; by diluting the voting power of our common stock; by diluting the earnings per share of our common stock; and by issuing common
stock, upon the conversion of the preferred stock, at a price below the fair market value or original issue price of the common stock that is outstanding prior to such issuance. See “Description of Preferred Stock” for additional information.
Classified Board of
Directors. Our Certificate of Formation provides that our board of directors be divided into three classes as nearly equal in number as possible, with one class to be elected annually in
accordance with our Bylaws, to hold office for a three-year term. Our Certificate of Formation furthers provide that directors may be removed from office only for “cause” by the affirmative vote of not less than the holders of two-thirds of the
total votes eligible to be cast by our shareholders. Having a classified board of directors could prevent or delay the ability of shareholders to remove or replace our directors, even if such action is favored by a majority of our outstanding
shares of common stock.
No Cumulative Voting. The TBOC does not permit cumulative voting in the election of directors, unless expressly provided in a corporation’s certificate of formation, and our Certificate of Formation does not provide
for such authority.
Limitations on Right to
Call Special Meetings. Our Bylaws provide that, except as otherwise required by the TBOC and subject to our Certificate of Formation, special meetings of shareholders may be called only by
the chairman of the board of directors, the board of directors or the holders of not less than 25% of all of the outstanding shares of the corporation entitled to vote at the meeting. In order for a special meeting to be called by the
shareholders, a written request for a special meeting signed by the shareholders owning at least the requisite percent of shares entitled to vote at the meeting as of the date of the request must be delivered to the secretary at the principal
executive offices of the Company. The special meeting request must include certain information listed in our Bylaws, including, but not limited to, a statement of the business proposed to be acted
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on at the meeting, the signatures of each shareholder submitting the special
meeting request, the name and address of each shareholder submitting the special meeting request and documentary evidence that the requesting shareholders own the requisite percent of shares as of the date of the special meeting request. A
special meeting request shall not be valid if (1) the request relates to an item of business that is not a proper subject for shareholder action under applicable law or our certificate of formation, (2) the request relates to an item of business
that is the same or substantially similar to an item presented at a meeting of shareholders occurring within ninety (90) days preceding the earliest date of the signature on the special meeting request, (3) the special meeting request is
delivered during the period commencing ninety (90) days prior to the first anniversary of the preceding year’s annual meeting and ending on the date of the next annual meeting of shareholders; or (4) the special meeting request does not comply
with the requirements of our Bylaws.
Advance Notice
Requirements for Shareholder Proposal and Director Nomination. Our Bylaws include specific procedures for shareholder proposals, including proposed nominations for directors, to be brought at
shareholder meetings including that the shareholder must (1) be the holder of not less than 25% of all of the outstanding shares of the corporation entitled to vote at the meeting, (2) be a shareholder of record at the time of giving of notice
of such meeting by the board of directors and at the time of the annual meeting, (3) be entitled to vote at such annual meeting, and (4) comply with the procedures set forth in our bylaws as to such nomination or other business. Notice of a
shareholder proposal notice must generally be delivered to the secretary of the Company not earlier than 30 days nor more than 60 days prior to the shareholder meeting. The notice of the shareholder proposal must include certain information
listed in our bylaws, including, but not limited to, the name and address of each shareholder making the proposal, the name and address of any nominee for director, the class and number of shares of our capital stock, any proxy used in
connection with the proposal, a description of the business desired to be brought before the meeting, and a description of all agreement, arrangement and understanding between the shareholder proposing the business to be brought before the
meeting and any other affiliates and associates with whom the requesting shareholder is acting in concert in connection with the proposal. Although this procedure does not give our board of directors any power to approve or disapprove
shareholder nominations for the election of directors or proposals for action, it may have the effect of precluding a contest for the election of directors or the consideration of shareholder proposals if the established procedure is not
followed, and of discouraging or deterring a third party from conducting a solicitation of proxies to elect its own slate of directors or to approve its proposal without regard to whether consideration of the nominees or proposals might be
harmful or beneficial to our shareholders and us.
Shareholder Actions. Under Texas law, no action required or permitted to be taken at an annual or special meeting of shareholders may be taken by written consent in lieu of a meeting of shareholders without the
unanimous written consent of all shareholders entitled to vote on the action unless the certificate of formation specifically allows action to be taken by a written consent of the shareholders holding at least the minimum number of shares
necessary to take the action that is subject to that consent at a meeting of shareholders, even though such consent is not signed by all of the corporation’s shareholders. Our Certificate of Formation does not provide for shareholder action by
less than unanimous written consent.
Bank Holding Company Act. The Bank Holding Company Act generally would prohibit any company that, together with its affiliates, is not solely engaged in activities that are permissible for a bank holding company or a
financial holding company from acquiring control of us. For these purposes, “control” is generally defined as ownership, control or the ability to vote 25% or more of any class of voting stock of, control of the election of a majority of the
directors of or other exercise of a controlling influence over a bank holding company. In addition, any existing bank holding company would need the prior approval of the Federal Reserve before acquiring 5% or more of our voting stock. The
Change in Bank Control Act of 1978, as amended, prohibits a person or group of persons from acquiring control of a bank holding company unless the Federal Reserve has been notified and has not objected to the transaction. Under a rebuttable
presumption established by regulations of the Federal Reserve, the acquisition of 10% or more of a class of voting stock of a bank holding company with a class of securities registered under Section 12 of the Exchange Act, such as us, is
presumed to constitute acquisition of control of the bank holding company for purposes of the Change in Bank Control Act of 1978.
The overall effect of these provisions may be to deter a future
offer or other merger or acquisition proposals that a majority of our shareholders might view to be in their best interests as the offer might include a substantial premium over the market price of our common stock at that time. In addition,
these provisions may have the effect of assisting our board of directors and our management in retaining their respective positions and placing them in a better position to resist changes that the shareholders may want to make if dissatisfied
with the conduct of our business.
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DESCRIPTION OF PREFERRED STOCK
The following description is a general
summary of the terms of the preferred stock that we may issue. The description below and in any prospectus supplement relating to the offer for sale of shares of a series of our preferred stock does not purport to be complete and is subject to
and qualified in its entirety by reference to our Certificate of Formation, and the applicable Certificate of Designation establishing the terms of the series of preferred stock being offered for sale by means of a prospectus supplement and our
Bylaws, each of which we will make available upon request. See “Where You Can Find More Information” for additional information.
General
Our authorized capital stock consists of 31,000,000 shares, of
which 30,000,000 shares are common stock, par value $1.00 per share, and 1,000,000 shares are preferred stock, par value $1.00 per share.
Our Certificate of Formation, subject to limitations prescribed
in our Bylaws and subject to limitations prescribed by Texas law, authorizes the Company’s board of directors, without shareholder approval, from time to time by resolution and without further shareholder action, to provide for the issuance of
shares of preferred stock, in one or more series, and to fix the relative rights and preferences of the shares of a series including voting powers, dividend rights, liquidation preferences, redemption rights and conversion privileges. As of the
date of this prospectus, no shares of our preferred stock are issued and outstanding.
In addition, as described under “Description of Depositary
Shares,” we may, instead of offering full shares of any series of preferred stock, offer depositary shares evidenced by depositary receipts, each representing a fraction of a share of the particular series of preferred stock issued and deposited
with a depositary. The fraction of a share of preferred stock which each depositary share represents will be set forth in the prospectus supplement relating to such depositary shares.
Terms of the Preferred Stock That We May Offer and Sell to You
You should refer to the prospectus supplement relating to the
shares of one or more series of preferred stock being offered for sale for the specific terms of that series, including:
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the title and par value of the series of preferred stock being offered and the price per share at which such shares of the series
of preferred stock are being offered to the public;
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the number of shares of the series of preferred stock being offered;
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the number of shares of preferred stock included in that series of preferred stock;
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the liquidation preference per share of the preferred stock of such series;
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the dividend rate(s), period(s) and/or payment date(s) or method(s) of calculating the payment date(s) applicable to the shares of
the series of preferred stock being offered;
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whether dividends will be cumulative or noncumulative and, if cumulative, the date from which dividends on the shares of preferred
stock being offered will accumulate;
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the procedures for any auction and remarketing, if any, for the shares of preferred stock being offered;
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the provisions for a sinking fund, if any, for the shares of preferred stock being offered;
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the provisions for redemption, if applicable, of the shares of preferred stock being offered, including the redemption price;
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any listing of the shares of preferred stock being offered on any securities exchange or market;
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the terms and conditions, if applicable, upon which the shares of preferred stock being offered will be convertible into or
exchangeable for other securities or rights, or a combination of the foregoing, including the name of the issuer of the securities or rights, conversion or exchange ratio or price, or the manner of calculating the conversion or exchange
ratio or price, and the conversion or exchange date(s) or period(s) and whether we will have the option to convert such preferred stock into cash;
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voting rights, if any, of the shares of preferred stock being offered;
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a discussion of any material and/or special United States federal income tax considerations applicable to the shares of preferred
stock being offered;
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the relative ranking and preferences of the shares of preferred stock being offered as to dividend rights to participate in our
assets and rights upon winding up or termination of the affairs of the Company;
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any limitations on the issuance of any series of preferred stock ranking senior to or equally with the series of preferred stock
being offered as to dividend rights and rights to participate in our assets upon winding up or termination of the affairs of the Company; and
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any other specific terms, preferences, rights, limitations or restrictions of the shares of preferred stock being offered.
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Redemption
If so specified in the applicable prospectus supplement, a series
of preferred stock may be redeemable at any time, in whole or in part, at our option, and may be mandatorily redeemable or convertible. Restrictions, if any, on the repurchase or redemption by us of any series of our preferred stock will be
described in the applicable prospectus supplement relating to that series. Generally, any redemption of our preferred stock will be subject to prior Federal Reserve approval. Any partial redemption of a series of preferred stock would be made in
the manner described in the applicable prospectus supplement relating to that series.
Upon the redemption date of shares of preferred stock called for
redemption or upon our earlier call and deposit of the redemption price, all rights of holders of the preferred stock called for redemption will terminate, except for the right to receive the redemption price.
Dividends
Holders of each series of preferred stock will be entitled to
receive cash dividends only when, as and if declared by our board of directors out of funds legally available for dividends. The rates or amounts and dates of payment of dividends will be described in the applicable prospectus supplement relating
to each series of preferred stock. Dividends will be payable to holders of record of preferred stock on the record dates fixed by our board of directors. Dividends on any series of preferred stock may be cumulative or noncumulative, as described
in the applicable prospectus supplement.
Our board of directors may not declare, pay or set apart funds
for payment of dividends on a particular series of preferred stock unless full dividends on any other series of preferred stock that ranks equally with or senior to such series of preferred stock with respect to the payments of dividends have
been paid or sufficient funds have been set apart for payment for either of the following:
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all prior dividend periods of each such series of preferred stock that pay dividends on a cumulative basis; or
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the immediately preceding dividend period of each such series of preferred stock that pays dividends on a noncumulative basis.
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Partial dividends declared on shares of any series of preferred
stock and other series of preferred stock ranking on an equal basis as to dividends will be declared pro rata. A pro rata declaration means that the ratio of dividends declared per share to accrued dividends per share will be the same for all
series of preferred stock of equal priority.
Liquidation Preference
In the event of the liquidation, dissolution or winding-up of us,
holders of each series of preferred stock will have the right to receive distributions upon liquidation in the amount described in the applicable prospectus supplement relating to each series of preferred stock, plus an amount equal to any
accrued but unpaid dividends. These distributions will be made before any distribution is made on our common stock or on any securities ranking junior to such preferred stock upon liquidation, dissolution or winding-up.
However, holders of the shares of preferred stock will not be
entitled to receive the liquidation price of their shares until we have paid or set aside an amount sufficient to pay in full the liquidation preference of any class or series of our capital stock ranking senior as to rights upon liquidation,
dissolution or winding up. Unless otherwise provided in the applicable prospectus supplement, neither a consolidation or merger of the Company with or into another corporation nor a merger of another corporation with or into the Company nor a
sale or transfer of all or part of the Company’s assets for cash or securities will be considered a liquidation, dissolution or winding up of the Company.
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If the liquidation amounts payable to holders of preferred
stock of all series ranking on a parity regarding liquidation are not paid in full, the holders of the preferred stock of these series will have the right to a ratable portion of our available assets up to the full liquidation preference. Holders
of these series of preferred stock or such other securities will not be entitled to any other amounts from us after they have received their full liquidation preference.
Voting Rights
The holders of shares of preferred stock will have no voting
rights, except:
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as otherwise stated in the applicable prospectus supplement;
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as otherwise stated in the Certificate of Designation establishing the series of such preferred stock; and
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as otherwise required by applicable law.
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Conversion Rights
The prospectus supplement for a series of preferred stock will
state the terms, if any, on which shares of that series are convertible into or exchangeable for shares of our common stock.
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DESCRIPTION OF DEPOSITARY SHARES
The following summary of the terms of the
depositary shares does not purport to be complete and is subject to, and is qualified in its entirety by reference to, the terms of the depositary shares and our preferred stock, as well as the form of the deposit agreement, our Certificate of
Formation and Bylaws relating to the applicable series of our preferred stock that are, or will be, filed with the SEC. The specific terms of any depositary shares or depositary receipts, including pricing and related terms, will be disclosed in
the applicable prospectus supplement. The prospectus supplement will also state whether any of the general provisions summarized below apply or not to the depositary shares or depositary receipts being offered. Therefore, you should carefully
consider the actual provisions of these documents.
General
We may elect, at our option, to offer fractional shares of
preferred stock, in which case we will issue receipts for such depositary shares, which we sometimes refer to as “depositary receipts.” Each depositary receipt represents a fraction of a share of the particular series of preferred stock issued,
as set forth in the applicable prospectus supplement. Each owner of a depositary share will be entitled, in proportion to the applicable fractional interest in shares of our preferred stock underlying that depositary share, to all rights and
preferences of our preferred stock underlying that depositary share. These rights may include dividend, voting, redemption and liquidation rights.
The shares of our preferred stock underlying the depositary
shares will be deposited with a bank or trust company selected by us to act as depositary, under a deposit agreement between us, the depositary and the holders of the depositary receipts. The depositary will be the transfer agent, registrar and
dividend disbursing agent for the depositary shares. The depositary must have its principal office in the United States and have combined capital and surplus of at least $50,000,000. The name and address of the principal executive office of the
depositary will be included in the prospectus supplement relating to the issuance. We may issue depositary receipts in temporary, definitive or book-entry form.
The depositary shares will be evidenced by depositary receipts
issued pursuant to the deposit agreement. Holders of depositary receipts agree to be bound by the deposit agreement, which requires holders to take certain actions such as filing proof of residence and paying certain charges.
Dividends and Other Distributions
The depositary will distribute cash dividends or other cash
distributions, if any, received in respect of the series of our preferred stock underlying the depositary shares to the record holders of depositary receipts in proportion to the number of depositary shares owned by those holders on the relevant
record date. The relevant record date for depositary shares will be the same date as the record date for our preferred stock.
In the event of a distribution other than in cash, the depositary
will distribute property received by it to the record holders of depositary receipts that are entitled to receive the distribution, unless the depositary determines that it is not feasible to make the distribution. If this occurs, the depositary,
with our approval, may adopt another method for the distribution, including selling the property and distributing the net proceeds to the holders.
Liquidation Preference
If a series of our preferred stock underlying the depositary
shares has a liquidation preference, in the event of our voluntary or involuntary liquidation, dissolution or winding up, holders of depositary shares will be entitled to receive the fraction of the liquidation preference accorded each share of
the applicable series of our preferred stock, as set forth in the applicable prospectus supplement.
Redemption
If a series of our preferred stock underlying the depositary
shares is subject to redemption, the depositary shares will be redeemed from the proceeds received by the depositary resulting from the redemption, in whole or in part, of our preferred stock held by the depositary. Whenever we redeem any of our
preferred stock held by the depositary, the depositary will redeem, as of the same redemption date, the number of depositary shares
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representing our preferred stock so redeemed. The depositary will mail the notice
of redemption to the record holders of the depositary receipts promptly upon receiving the notice from us and no fewer than 30 nor more than 60 days, unless otherwise provided in the applicable prospectus supplement, prior to the date fixed for
redemption of our preferred stock.
After the date fixed for redemption, the depositary shares called
for redemption will no longer be outstanding. When the depositary shares are no longer outstanding, all rights of the holders will end, except the right to receive money, securities or other property payable upon redemption.
Voting Rights
Upon receipt of notice of any meeting at which the holders of our
preferred stock are entitled to vote, the depositary will mail the information contained in the notice of meeting to the record holders of the depositary receipts underlying our preferred stock. Each record holder of those depositary receipts on
the record date will be entitled to instruct the depositary as to the exercise of the voting rights pertaining to the amount of our preferred stock underlying that holder’s depositary shares. The record date for the depositary will be the same
date as the record date for our preferred stock. The depositary will try, as far as practicable, to vote our preferred stock underlying the depositary shares in accordance with these instructions. We will agree to take all action that may be
deemed necessary by the depositary in order to enable the depositary to vote our preferred stock in accordance with these instructions. The depositary will not vote our preferred stock to the extent that it does not receive specific instructions
from the holders of depositary receipts.
Conversion or Exchange Rights
If any series of preferred stock underlying the depositary shares
is subject to conversion or exchange, the applicable prospectus supplement will describe the rights or obligations of each record holder of depositary receipts to convert or exchange the depositary shares.
Withdrawal of Preferred Stock
Owners of depositary shares will be entitled to receive upon
surrender of depositary receipts at the principal office of the depositary and payment of any unpaid amount due to the depositary, the number of whole shares of our preferred stock underlying their depositary shares.
Partial shares of our preferred stock will not be issued. If the
surrendered depositary shares exceed the number of depositary shares that represent the number of whole shares of preferred stock the holder wishes to withdraw, then the depositary will deliver to the holder at the same time a new depositary
receipt evidencing the excess number of depositary shares. Holders of our preferred stock will not be entitled to deposit the shares under the deposit agreement or to receive depositary receipts evidencing depositary shares for our preferred
stock.
Amendment and Termination of the Deposit Agreement
The form of depositary receipt evidencing the depositary shares
and any provision of the deposit agreement may be amended by agreement between the depositary and us as set forth in the deposit agreement. However, any amendment which materially and adversely alters the rights of the holders of depositary
shares, other than fee changes, will not be effective unless the amendment has been approved by the holders of at least a majority of the outstanding depositary shares. If an amendment becomes effective, holders are deemed to agree to the
amendment and to be bound by the amended deposit agreement if they continue to hold their depositary receipts.
The deposit agreement will automatically terminate if:
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all outstanding depositary shares have been redeemed and all amounts payable upon redemption have been paid;
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each share of preferred stock held by the depositary has been converted into or exchanged for common stock, other preferred stock
or other securities; or
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a final distribution in respect of the preferred stock held by the depositary has been made to the holders of depositary receipts
in connection with our liquidation, dissolution or winding-up.
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We may also terminate the deposit agreement at any time. Upon
such event, the depositary will give notice of termination to the holders not less than 30 days before the termination date. Once depositary receipts are
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surrendered to the depositary, it will send to each holder the number of whole
and fractional shares of the series of preferred stock underlying that holder’s depositary receipts, provided that, at our election we may pay cash in lieu of fractional shares of preferred stock that may be issuable.
Charges of Depositary
We will pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangement. We will also pay charges of the depositary in connection with:
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the initial deposit of our preferred stock;
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the initial issuance of the depositary shares;
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any redemption of our preferred stock; and
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all withdrawals of our preferred stock by owners of depositary shares.
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Holders of depositary receipts will pay transfer, income and
other taxes and governmental charges and other specified charges as provided in the deposit agreement for their accounts. If these charges have not been paid, the depositary may:
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refuse to transfer depositary shares;
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withhold dividends and distributions; and
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sell the depositary shares evidenced by the depositary receipt.
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Limitations on Our Obligations and Liability to Holders of
Depositary Receipts
The deposit agreement will limit our obligations and the
obligations of the depositary. It will also limit our liability and the liability of the depositary as follows:
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We and the depositary will only be obligated to take the actions specifically set forth in the deposit agreement in good faith;
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We and the depositary will not be liable if either is prevented or delayed by law or circumstances beyond our or its control from
performing our or its obligations under the deposit agreement;
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We and the depositary will not be liable if either exercises discretion permitted under the deposit agreement;
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We and the depositary will have no obligation to become involved in any legal or other proceeding related to the depositary
receipts or the deposit agreement on behalf of the holders of depositary receipts or any other party, unless we and the depositary are provided with satisfactory indemnity; and
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We and the depositary will be permitted to rely upon any written advice of counsel or accountants and on any documents we believe
in good faith to be genuine and to have been signed or presented by the proper party.
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In the deposit agreement, we will agree to indemnify the
depositary under certain circumstances.
Resignation and Removal of Depositary
The depositary may resign at any time by delivering a notice to
us. We may remove the depositary at any time. Any such resignation or removal will take effect upon the appointment of a successor depositary and its acceptance of such appointment. The successor depositary must be appointed within 60 days after
delivery of the notice for resignation or removal. The successor depositary must be a bank and trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000.
Miscellaneous
The depositary will forward to the holders of depositary receipts
all reports and communications we deliver to the depositary that we are required to furnish to the holders of our preferred stock. In addition, the depositary will make available for inspection by holders of depositary receipts at the principal
office of the depositary, and at such other places as it may from time to time deem advisable, any reports and communications we deliver to the depositary as the holder of our preferred stock.
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DESCRIPTION OF SUBSCRIPTION RIGHTS
The following briefly summarizes the general
provisions of subscription rights that we may offer to purchase additional shares of our common stock, any series of preferred stock, depositary shares or debt securities, which we may issue. The following description and any description in a
prospectus supplement is a summary only and is subject to, and qualified in its entirety by reference to the terms and provisions of the rights, which we will file with the SEC in connection with an issuance of rights to holders of our common
stock or any series of our preferred stock. The specific terms of any rights, including the period during which the rights may be exercised, the manner of exercising such rights, and the transferability of rights, will be disclosed in the
applicable prospectus supplement. Although we may issue rights, in our sole discretion, we have no obligation to do so.
General
We may issue subscription rights to purchase our common stock,
preferred stock, depositary shares or debt securities. If we issue subscription rights, they will be governed by a separate subscription agent agreement that we will sign with a bank or trust company, as rights agent, that will be named in the
applicable prospectus supplement. The rights agent will act solely as our agent and will not assume any obligation to any holders of subscription rights certificates or beneficial owners of subscription rights.
These subscription rights may be issued independently or together
with any other security offered hereby and may or may not be transferable by the shareholder receiving the subscription rights in such offering. In connection with any offering of subscription rights, we may enter into a standby arrangement with
one or more underwriters or other purchasers pursuant to which the underwriters or other purchasers may be required to purchase any securities remaining unsubscribed for after such offering.
In general, a subscription right entitles the holder to purchase
for cash a specific number of shares of common stock or other securities at a specified exercise price. The rights are normally issued to shareholders as of a specific record date, may be exercised only for a limited period of time and become
void following the expiration of such period. The applicable prospectus supplement will describe the specific terms of any offering of subscription rights for which this prospectus is being delivered, including the following:
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the record date for shareholders entitled to receive subscription rights;
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the price, if any, for the subscription rights;
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the exercise price payable for each share of our common stock, preferred stock, depositary shares or for debt securities upon the
exercise of the subscription rights;
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the number of subscription rights issued to each shareholder;
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the number and terms of each share of our common stock, preferred stock, depositary shares or for debt securities which may be
purchased per each subscription right;
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the extent to which the subscription rights are transferable;
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any provisions for adjustment of the number or amount of securities receivable upon exercise of the subscription rights or the
exercise price of the subscription rights;
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any other terms of the subscription rights, including the terms, procedures and limitations relating to the exchange and exercise
of the subscription rights;
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the date on which the right to exercise the subscription rights shall commence, and the date on which the subscription rights
shall expire;
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the extent to which the subscription rights may include an over-subscription privilege with respect to unsubscribed securities;
and
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if applicable, the material terms of any standby underwriting or purchase arrangement entered into by us in connection with the
offering of subscription rights.
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If fewer than all of the subscription rights issued in any rights
offering are exercised, then we may offer any unsubscribed securities directly to persons other than shareholders, to or through agents, underwriters or dealers
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or through a combination of such methods, including pursuant to standby
arrangements, as described in the applicable prospectus supplement. After the close of business on the expiration date of a subscription rights offering, all unexercised subscription rights will become void.
The description in the applicable prospectus supplement of any
subscription rights we offer will not necessarily be complete and is subject to, and will be qualified in its entirety by reference to, the applicable subscription rights agreement and subscription rights certificate, which will be filed with the
SEC in connection with any offering of subscription rights.
Rights of Subscribers
Holders of rights will have no rights as shareholders with
respect to the shares of common stock or preferred stock 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 prospectus supplement, and such
shares of common stock or preferred stock, as applicable, have been issued to such persons. Holders of 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 rights and have paid the exercise price to the subscription agent. All exercises of rights are 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 preferred stock pursuant to the 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 shares 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.
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We may issue warrants for the purchase of debt securities,
preferred stock, common stock, other securities of the Company or any combination of the foregoing. A warrant is a security that gives the holder the right, upon exercise of the warrant, to purchase, for a specified exercise period, a specified
number of the issuer’s other securities at a specified exercise price per share which may be subject to adjustment upon the occurrence of specified events. Warrants may be issued alone or together with securities offered by any prospectus
supplement and may be attached to, or separate from, those securities. We will issue each series of warrants under a separate warrant agreement to be entered into between us and a warrant agent. The warrant agent will act solely as our agent in
connection with the warrants of such series and will not assume any obligation or relationship of agency for or on behalf of holders or beneficial owners of warrants. We will file the form of any warrant agreement with the SEC, and you should
read the warrant agreement for provisions that may be important to you.
The prospectus supplement relating to any warrants that we are
offering will include specific terms relating to the offering. The prospectus will describe the terms of any warrants, including the following, as may be applicable:
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the title and specific designation of the warrants;
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the aggregate number of warrants offered;
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the amount of warrants outstanding, if any;
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the designation, number, aggregate principal amount and terms of the debt securities, preferred stock, or common stock purchasable
upon exercise of the warrants and procedures that will result in the adjustment of those numbers;
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the exercise price or prices of the warrants;
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the procedures and conditions relating to the exercise of the warrants;
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price or prices at which the warrants will be issued;
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the dates or periods during which the warrants are exercisable;
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the designation and terms of any securities with which the warrants are issued;
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if the warrants are issued as a unit with another security, the date, if any, on and after which the warrants and the other
security will be separately transferable;
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if the exercise price is not payable in U.S. Dollars, the foreign currency, currency unit or composite currency in which the
exercise price is denominated;
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any minimum or maximum amount of warrants that may be exercised at any one time;
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the anti-dilution provisions of the warrants, if any;
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terms of any right that we may have to redeem the warrants;
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if applicable, the identity of the warrant agent for the warrants and of any other depositaries, execution or paying agents,
transfer agents, registrars or other agents;
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any terms relating to the modification of the warrants;
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any terms, procedures and limitations relating to the transferability, exchange or exercise of the warrants; and
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any other material terms of the warrants.
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Before exercising their warrants, holders of warrants will not
have any of the rights of holders of the securities purchasable upon such exercise, including the right to receive dividends, if any, or payments upon our liquidation, dissolution or winding-up, or to exercise voting rights, if any.
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We may issue units comprised of any combination of two or more of
the other securities described in this prospectus and as specified in the applicable prospectus supplement. Each unit will be issued so that the holder of the unit is also the holder, with rights and obligations of a holder, of each security
included in the unit. The units may be issued under unit agreements to be entered into between us and a unit agent.
The applicable prospectus supplement will specify the terms of
the units, including:
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the designation and terms of the units and of any of the securities comprising the units, including whether and under what
circumstances the securities comprising the units may be traded separately;
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a description of the terms of any unit agreement governing the units;
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a description of the provisions for the payment, settlement, transfer or exchange of the units;
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a discussion of the material U.S. federal income tax considerations, if applicable; and
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whether the units if issued as a separate security will be issued in fully registered or global form.
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The applicable prospectus supplement will describe the terms of
any units. The description in the applicable prospectus supplement of any units we offer will not necessarily be complete and will be qualified in its entirety by reference to the applicable unit agreement, which will be filed with the SEC in
connection with any offering of units.
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The Company may sell the offered securities from time to time:
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directly to one or more purchasers;
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directly to its shareholders;
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directly to holders of warrants exercisable for our securities upon the exercise of such warrants; or
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through a combination of any of these methods of sale.
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The prospectus supplement relating to the offered securities will
set forth the terms of the offering, including the name or names of any underwriters, dealers or agents, the initial offering price of the offered securities to the public and the use of proceeds from the sale, purchase price of the offered
securities, estimated offering expenses, any underwriting discounts, commissions and other items constituting underwriters’ compensation, and any underwriting discounts, commissions and other allowances and reallowances paid to dealers or agents
and any securities exchanges on which the offered securities may be listed. The anticipated date of delivery of offered securities will be set forth in the applicable prospectus supplement relating to each offer.
The Company may use one or more underwriters in the sale of the
offered securities, in which case the offered securities will be acquired by the underwriter or underwriters for their own account and may be resold from time to time in one or more transactions either:
|
•
|
at a fixed price or prices, which may be changed from time to time;
|
|
•
|
at market prices prevailing at the time of sale;
|
|
•
|
at prices related to the prevailing market prices; or
|
The Company may directly solicit offers to purchase offered
securities. Agents designated by the Company from time to time may also solicit offers to purchase offered securities. Unless stated otherwise in the applicable prospectus supplement, any agent will be acting on a best efforts basis for the
period of its appointment. Any agent designated by the Company, who may be deemed to be an “underwriter” as that term is defined in the Securities Act, involved in the offer or sale of the offered securities in respect of which this prospectus is
delivered will be named, and any commissions payable by the Company to such agent will be set forth, in the prospectus supplement.
If a dealer is utilized in the sale of the offered securities in
respect of which this prospectus and a related prospectus supplement is delivered, the Company will sell the offered securities to the dealer, as principal. The dealer, who may be deemed to be an “underwriter” as that term is defined in the
Securities Act, may then resell the offered securities to the public at varying prices to be determined by the dealer at the time of resale.
If an underwriter is, or underwriters are, used in the sale, the
Company will execute an underwriting agreement with the underwriters at the time of sale to the underwriters. The names of the underwriters will be set forth in the prospectus supplement, which, along with this prospectus, will be used by the
underwriter to make resales of the offered securities in respect of which this prospectus is delivered to the public. In connection with the sale of offered securities, the underwriter may be deemed to have received compensation from the Company
in the form of underwriting discounts or commissions and may also receive commissions from purchasers of offered securities for whom they may act as agents. Underwriters may also sell offered securities to or through dealers, and the dealers may
receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for whom they may act as agents.
Underwriters or agents may make sales in privately negotiated
transactions and/or any other method permitted by law, including sales deemed to be an “at-the-market” offering as defined in Rule 415 promulgated under the Securities Act, which includes sales made directly on the Nasdaq Global Select Market,
the existing trading market for our common stock, or sales made to or through a market maker other than on an exchange.
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If so indicated in the applicable prospectus supplement, the
Company will authorize underwriters, dealers or other persons to solicit offers by certain institutions to purchase offered securities from the Company at the public offering price set forth in the applicable prospectus supplement pursuant to
delayed delivery contracts providing for payment and delivery on a future date or dates. Institutions with which these contracts may be made include commercial and savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others. The obligations of any purchasers under any delayed delivery contract will not be subject to any conditions except that:
|
•
|
the purchase of the offered securities shall not at the time of delivery be prohibited under the laws of the jurisdiction to which
the purchaser is subject; and
|
|
•
|
if the offered securities are also being sold to underwriters, the Company will have sold to the underwriters the offered
securities not sold for delayed delivery.
|
The underwriters, dealers, agents and other persons will not have
any responsibility in respect of the validity or performance of such contracts. The prospectus supplement relating to the contracts will set forth the price to be paid for offered securities pursuant to the contracts, the commission payable for
solicitation of the contracts and the date or dates in the future for delivery of offered securities pursuant to the contracts.
Offered securities may also be offered and sold, if so indicated
in the prospectus supplement, in connection with a remarketing upon their purchase, in accordance with a redemption or repayment pursuant to their terms, or otherwise, by one or more remarketing firms, acting as principals for their own accounts
or as agents for the Company. Any remarketing firm will be identified and the terms of its agreement, if any, with the Company and its compensation will be described in the applicable prospectus supplement. Remarketing firms may be deemed to be
underwriters in connection with their remarketing of offered securities.
Unless otherwise set forth in the applicable prospectus
supplement, the obligations of underwriters to purchase the offered securities will be subject to certain conditions precedent and such underwriters will be obligated to purchase all such securities, if any are purchased. In connection with the
offering of securities, we may grant to the underwriters an option to purchase additional securities to cover over-allotments at the initial public offering price, with an additional underwriting commission, as may be set forth in the
accompanying prospectus supplement. If we grant any over-allotment option, the terms of such over-allotment option will be set forth in the prospectus supplement for such securities.
Any underwriter may engage in over-allotment, stabilizing
transactions, short-covering transactions and penalty bids in accordance with Regulation M under the Exchange Act. Over-allotment involves sales in excess of the offering size, which create a short position. Stabilizing transactions permit bids
to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum. Short-covering transactions involve purchases of the securities in the open market after the distribution is completed to cover short
positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities originally sold by the dealer are purchased in a covering transaction to cover short positions. Those activities may cause the price
of the securities to be higher than it would otherwise be. If commenced, the underwriters may discontinue any of the activities at any time.
Any person participating in the distribution of the offered
securities will be subject to applicable provisions of the Exchange Act and the rules and regulations under the Exchange Act, including without limitation Regulation M, which may limit the timing of transactions involving the offered securities
under this prospectus. Furthermore, Regulation M may restrict the ability of any person engaged in the distribution of such offered securities to engage in market-making activities with respect to the particular securities being distributed. All
of the above may affect the marketability of the offered securities under this prospectus and the ability of any person or entity to engage in market-making activities with respect to such offered securities.
The Company, the underwriters or other agents may also engage in
derivative transactions involving the offered securities. These derivatives may consist of short sale transactions and other hedging activities. The underwriters or agents may acquire a long or short position in the offered securities, hold or
resell securities acquired and purchase options or futures on the securities and other derivative instruments with returns linked to or related to changes in the price of the offered securities. In order to facilitate these derivative
transactions, we may enter into security lending or repurchase agreements with the underwriters or agents. The underwriters or agents may effect the derivative transactions through sales of the securities to the public, including short sales, or
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by lending the offered securities in order to facilitate short sale transactions
by others. The underwriters or agents may also use the offered securities purchased or borrowed from us or others (or, in the case of derivatives, offered securities received from us in settlement of those derivatives) to directly or indirectly
settle sales of the offered securities or close out any related open borrowings of the offered securities.
We expect that any agreements we may have with underwriters,
dealers and agents will include provisions indemnifying them against certain civil liabilities, including certain liabilities under the Securities Act, or providing for contribution with respect to payments that they may be required to make. An
underwriter, dealer or agent, or any of their affiliates, may be customers of, or otherwise engage in transactions with or perform services for us in the ordinary course of business.
The specific terms of any lock-up provisions with respect to any
given offering will be described in the applicable prospectus supplement.
Under the securities law of various states, the offered
securities under this prospectus may be sold in those states only through registered or licensed brokers or dealers. In addition, in various states the offered securities under this prospectus may not be offered and sold unless such securities
have been registered or qualified for sale in the state or an exemption from such registration or qualification is available and is complied with.
The securities may be a new issue of securities that have no
established trading market. Any underwriters to whom securities are sold for public offering and sale may make a market in such securities, but such underwriters will not be obligated to do so and may discontinue any market making at any time
without notice. Such securities may or may not be listed on a national securities exchange. No assurance can be given as to the liquidity of or the existence of trading markets for any of our securities.
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Certain legal matters in connection with any offering of
securities made by this prospectus will be passed upon for us by Hunton Andrews Kurth LLP, Dallas, Texas. If the securities are being distributed in an underwritten offering, certain legal matters will be passed upon for the underwriters by
counsel identified in the related prospectus supplement.
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The consolidated financial statements of South Plains Financial,
Inc. for the year ended December 31, 2021, incorporated in this prospectus by reference from the South Plains Financial, Inc. Annual Report on Form 10-K for the year ended December 31, 2023, have been audited by Weaver and Tidwell, L.L.P., an
independent registered public accounting firm, as stated in their reports thereon incorporated herein by reference, and have been incorporated in this prospectus and registration statement in reliance upon such reports and upon the authority of
such firm as experts in accounting and auditing.
The consolidated financial statements of South Plains Financial,
Inc. as of December 31, 2023 and 2022, and for each of the years in the two-year period ended December 31, 2023, incorporated in this prospectus by reference from the South Plains Financial, Inc. Annual Report on Form 10-K for the year ended
December 31, 2023, have been audited by Forvis Mazars, LLP, an independent registered public accounting firm, as stated in their reports thereon incorporated herein by reference, and have been incorporated in this prospectus and registration
statement in reliance upon such reports and upon the authority of such firm as experts in accounting and auditing.
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$150,000,000
Debt Securities
Common Stock
Preferred Stock
Depositary Shares
Subscription Rights
Warrants
Units
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
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Item 14.
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Other Expenses of Issuance and Distribution.
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Estimated fees and expenses (except in the case of a registration
fee), other than underwriting discounts and commissions, payable by the Company in connection with the issuance and distribution of the offered securities are as follows:
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SEC Registration Fee
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$22,140
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Accounting Fees and Expenses
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(1)
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Legal Fees and Expenses
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(1)
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Printing Expenses
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(1)
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Trustee and Depositary Fees and Expenses
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(1)
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Blue Sky Fees and Expenses
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(1)
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Rating Agency Fees
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(1)
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Listing Fees and Expenses
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(1)
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Miscellaneous Expenses
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(1)
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Total
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$ (1)
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(1)
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These fees are calculated based on the numbers of issuances and amount of securities offered and, accordingly, cannot be estimated
at this time.
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Item 15.
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Indemnification of Directors and Officers
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The Texas Business Organizations Code (“TBOC”) permits a Texas
corporation to limit in its charter the liability of the corporation’s directors to the corporation or its shareholders for conduct in the performance of such director’s duties. However, Texas law does not permit any limitation of liability of a
director who is found liable to the corporation or is found liable because the director improperly received a personal benefit for: (1) breaching a duty of loyalty owed to the corporation; (2) failing to act in good faith that constitutes a
breach of a duty owed by the person to the corporation; or (3) engaging in willful or intentional misconduct in the performance of a director’s duty to the corporation. The Registrant’s amended and restated certificate of formation provides that
a director of the Registrant will not be liable to the Registrant or its shareholders to the fullest extent permitted by Texas law.
Sections 8.101 and 8.103 of the TBOC provide that a Texas
corporation may indemnify a person who was, is, or is threatened to be a named defendant or respondent in a proceeding because the person is or was a director only if a determination is made that such indemnification is permissible under the
TBOC: (1) by a majority vote of the directors who at the time of the vote are disinterested and independent, regardless of whether such directors constitute a quorum; (2) by a majority vote of a board committee designated by a majority of
disinterested and independent directors and consisting solely of disinterested and independent directors; (3) by special legal counsel selected by the board of directors or a committee of the board of directors as set forth in (1) or (2); (4) by
the shareholders in a vote that excludes the shares held by directors who are not disinterested and independent; or, (5) by unanimous vote of the shareholders. The power to indemnify applies only if such person acted in good faith and, in the
case of conduct in the person’s official capacity as a director, in a manner he reasonably believed to be in the best interest of the corporation, and, in all other cases, that the person’s conduct was not opposed to the best interest of the
corporation, and with respect to any criminal action or proceeding, that such person had no reasonable cause to believe his conduct was unlawful.
Section 8.104 of the TBOC provides that a Texas corporation may
pay or reimburse, in advance of the final disposition of the proceeding, reasonable expenses incurred by a present director who was, is, or is threatened to be made a named defendant or respondent in a proceeding after the corporation receives a
written affirmation by the director of his good faith belief that he has met the standard of conduct necessary for indemnification under Section 8.101 of the TBOC and a written undertaking by or on behalf of the director to repay the amount paid
or reimbursed if it is ultimately determined that he has not met that standard or if it is ultimately determined that
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indemnification of the director is not otherwise permitted under the TBOC.
Section 8.105 of the TBOC also provides that reasonable expenses incurred by a former director or officer, or a present or former employee or agent of the corporation, who was, is, or is threatened to be made a named defendant or respondent in a
proceeding may be paid or reimbursed by the corporation, in advance of the final disposition of the action, as the corporation considers appropriate.
Section 8.105 of the TBOC provides that a corporation may
indemnify and advance expenses to a person who is not a director, including an officer, employee, or agent of the corporation as provided by: (1) the corporation’s governing documents; (2) an action by the corporation’s governing authority; (3)
resolution by the shareholders; (4) contract; or (5) common law. As consistent with Section 8.105 of the TBOC, a corporation may indemnify and advance expenses to persons who are not directors to the same extent that a corporation may indemnify
and advance expenses to directors.
The Company’s Amended and Restated Certificate of Formation
provides that, to the fullest extent and under the circumstances permitted the by Chapter 8 of the TBOC, the Registrant must indemnify and advance expenses to directors and officers, and (2) the Registrant may purchase and maintain insurance on
behalf of our directors and officers.
The Company also maintain directors’ and officers’ liability
insurance.
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1.1*
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—
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Form of Underwriting Agreement.
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1.2*
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—
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Form of Placement Agent Agreement.
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—
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Amended and Restated Certificate of Formation of the Company, incorporated
herein by reference to Exhibit 3.1 to the Company’s Registration Statement on Form S-1 filed on April 29, 2019 (Registration No. 333-230851).
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—
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Second Amended and Restated Bylaws of the Company, incorporated by
reference to Exhibit 3.1 of the Company’s Current Report on Form 8-K filed on November 1, 2021 (File No. 001-38895).
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—
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Indenture, dated September 29, 2020, by and between South Plains Financial,
Inc. and UMB Bank, National Association, as trustee (incorporated herein by reference to Exhibit 4.1 to the Current Report on Form 8-K filed with the SEC on September 30, 2020 (File No. 001-38895)).
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—
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Form of Fixed to Floating Rate Subordinated Note due September 30, 2030
(included as Exhibit A-2 to the Indenture incorporated herein by reference as Exhibit 4.1 hereto).
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4.3*
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—
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Form of Senior Debt Security.
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4.4*
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—
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Form of Subordinated Debt Security.
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—
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Form of Indenture for Senior Debt.
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—
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Form of Indenture for Subordinated Debt.
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4.7*
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—
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Form of Subordinated Note Purchase Agreement.
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—
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Specimen Common Stock Certificate, incorporated by reference to Exhibit 4.1
to the Registration Statement on Form S-1 of the Company, filed on April 29, 2019 (Registration No. 333-230851).
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4.9*
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—
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Form of Articles of Amendment to the Restated Certificate of Formation for
Series of Preferred Stock.
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4.10*
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—
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Form of Preferred Stock Certificate.
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4.11*
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—
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Form of Deposit Agreement and Depositary Receipt.
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4.12*
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—
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Form of Subscription Certificate.
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4.13*
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—
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Form of Subscription Agent Agreement.
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4.14*
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—
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Form of Warrant Agreement.
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4.15*
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—
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Form of Unit Agreement.
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—
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Opinion of Hunton Andrews Kurth LLP.
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—
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Consent of Forvis Mazars, LLP.
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—
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Consent of Weaver and Tidwell, LLP.
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—
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Consent of Hunton Andrews Kurth LLP (included in Exhibit 5.1).
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—
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Power of Attorney (included on original signature page to this registration
statement).
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25.1**
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—
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Form T-1 of Trustee for the Indenture for Senior Debt Securities.
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25.2**
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—
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Form T-1 of Trustee for the Indenture for Subordinated Debt Securities.
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—
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Filing Fee Table.
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*
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To be filed, if necessary, by amendment to the registration statement or incorporated by reference to a Current Report on Form 8-K
in connection with the offering of securities registered hereunder.
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**
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To be filed separately, if applicable, pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939.
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(a)
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The undersigned registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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(i)
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to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
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(ii)
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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
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(iii)
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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;
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provided, however, that the undertakings set forth in paragraphs (a)(1)(i),
(a)(1)(ii) and (a)(1)(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.
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(2)
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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.
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(3)
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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.
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(4)
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That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
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(i)
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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
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(ii)
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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
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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.
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(5)
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That, for the purpose of determining liability of a 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 undersigned 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:
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(i)
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Any preliminary prospectus or prospectus of an undersigned registrant relating to the offering required to be filed pursuant to
Rule 424;
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(ii)
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Any free writing prospectus relating to the offering prepared by or on behalf of an undersigned registrant or used or referred to
by an undersigned registrant;
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(iii)
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The portion of any other free writing prospectus relating to the offering containing material information about an undersigned
registrant or its securities provided by or on behalf of an undersigned registrant; and
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(iv)
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Any other communication that is an offer in the offering made by an undersigned registrant to the purchaser.
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(6)
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That, for purposes 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.
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(b)
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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.
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(c)
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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 Trustee Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act.
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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 to be signed on its behalf by the undersigned, thereunto duly authorized,
in the City of Lubbock, State of Texas, on September 30, 2024.
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SOUTH PLAINS FINANCIAL, INC.
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By:
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/s/ Curtis C. Griffith
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Curtis C. Griffith
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Chairman and Chief Executive Officer
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KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Curtis C. Griffith and Cory T. Newsom as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments and registration statements filed pursuant to Rule 462(b) under the Securities Act) to this registration statement and to file the same,
with all relevant exhibits and other documents in connection therewith, with the SEC, granting unto said attorneys-in-fact and agents and each of them, full power and authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes or
substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the capacities and on the dates indicated.
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/s/ Curtis C. Griffith
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Director (Chairman); Chief Executive Officer
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September 30, 2024
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Curtis C. Griffith
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/s/ Cory T. Newsom
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Director; President
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September 30, 2024
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Cory T. Newsom
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/s/ Steven B. Crockett
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Chief Financial Officer; Treasurer
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September 30, 2024
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Steven B. Crockett
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/s/ Richard D. Campbell
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Director
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September 30, 2024
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Richard D. Campbell
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/s/ LaDana R. Washburn
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Director
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September 30, 2024
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LaDana R. Washburn
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/s/ Noe G. Valles
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Director
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September 30, 2024
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Noe G. Valles
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/s/ Kyle R. Wargo
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Director
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September 30, 2024
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Kyle R. Wargo
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Exhibit 4.5
SOUTH PLAINS FINANCIAL, INC.
Issuer
and
Trustee
SENIOR INDENTURE
Dated as of , 20
Senior Debt Securities
TABLE OF CONTENTS
Page:
| Article One Definitions and Other Provisions of General Application |
1 |
| Section 1.01. Definitions |
1 |
| Section 1.02. Compliance Certificates and Opinions |
6 |
| Section 1.03. Form of Documents Delivered to Trustee |
6 |
| Section 1.04. Acts of Holders |
7 |
| Section 1.05. Notices, Etc., to Trustee and Company |
8 |
| Section 1.06. Notice to Holders; Waiver |
8 |
| Section 1.07. Language of Notices |
8 |
| Section 1.08. Conflict With Trust Indenture Act |
8 |
| Section 1.09. Effect of Headings and Table of Contents |
9 |
| Section 1.10. Successors and Assigns |
9 |
| Section 1.11. Separability Clause |
9 |
| Section 1.12. Benefits of Indenture |
9 |
| Section 1.13. Governing Law |
9 |
| Section 1.14. Legal Holidays |
9 |
| Section 1.15. Immunity of Shareholders, Directors, Officers and Agents of the Company |
9 |
| Section 1.16. Waiver of Jury Trial |
9 |
| Section 1.17. When Securities Disregarded |
9 |
| Section 1.18. USA Patriot Act |
9 |
| Section 1.19. Force Majeure |
9 |
| Section 1.20. Calculations |
10 |
| Article Two Securities Forms |
10 |
| Section 2.01. Forms Generally |
10 |
| Section 2.02. Form of Trustee’s Certificate of Authentication |
10 |
| Section 2.03. Securities in Global Form |
10 |
| Article Three The Securities |
11 |
| Section 3.01. Amount Unlimited; Issuable in Series |
11 |
| Section 3.02. Denominations |
13 |
| Section 3.03. Securities in Foreign Countries |
13 |
| Section 3.04. Execution, Authentication, Delivery and Dating |
13 |
| Section 3.05. Temporary Securities |
13 |
| Section 3.06. Registration, Transfer and Exchange |
14 |
| Section 3.07. Mutilated, Destroyed, Lost and Stolen Securities |
15 |
| Section 3.08. Payment of Interest; Interest Rights Preserved |
16 |
| Section 3.09. Persons Deemed Owners |
16 |
| Section 3.10. Cancellation |
17 |
| Section 3.11. Computation of Interest |
17 |
| Section 3.12. Cusip Numbers |
17 |
| Article Four Satisfaction and Discharge |
17 |
| Section 4.01. Satisfaction and Discharge of Indenture |
17 |
| Section 4.02. Application of Trust Money |
18 |
| Section 4.03. Satisfaction, Discharge and Defeasance of Securities of Any Series |
18 |
| Article Five Remedies |
19 |
| Section 5.01. Events of Default |
19 |
| Section 5.02. Acceleration of Maturity; Rescission and Annulment |
20 |
| Section 5.03. Collection of Indebtedness and Suits For Enforcement By Trustee |
21 |
| Section 5.04. Trustee May File Proofs of Claim |
21 |
| Section 5.05. Trustee May Enforce Claims Without Possession of Securities |
22 |
| Section 5.06. Application of Money or Property Collected |
22 |
| Section 5.07. Limitation on Suits |
22 |
| Section 5.08. Unconditional Right of Holders to Receive Principal, Premium, Interest and Additional
Amounts |
23 |
| Section 5.09. Restoration of Rights and Remedies |
23 |
| Section 5.10. Rights and Remedies Cumulative |
23 |
| Section 5.11. Delay or Omission Not Waiver |
23 |
| Section 5.12. Control By Holders |
23 |
| Section 5.13. Waiver of Past Defaults |
23 |
| Section 5.14. Waiver of Usury, Stay or Extension Laws |
24 |
| Article Six The Trustee |
24 |
| Section 6.01. Certain Duties and Responsibilities |
24 |
| Section 6.02. Notice of Defaults |
25 |
| Section 6.03. Certain Rights of Trustee |
25 |
| Section 6.04. Not Responsible For Recitals or Issuance of Securities |
26 |
| Section 6.05. May Hold Securities |
26 |
| Section 6.06. Money Held In Trust |
26 |
| Section 6.07. Compensation and Reimbursement |
26 |
| Section 6.08. Corporate Trustee Required; Eligibility; Conflicting Interests |
27 |
| Section 6.09. Resignation and Removal; Appointment of Successor |
27 |
| Section 6.10. Acceptance of Appointment By Successor |
28 |
| Section 6.11. Merger, Conversion, Consolidation or Succession to Business |
29 |
| Section 6.12. Appointment of Authenticating Agent |
29 |
| Article Seven Holders’ Lists and Reports by Trustee and Company |
30 |
| Section 7.01. Company to Furnish Trustee Names and Addresses of Holders |
30 |
| Section 7.02. Preservation of Information; Communications to Holders |
30 |
| Section 7.03. Reports By Trustee |
31 |
| Section 7.04. Reports By Company |
31 |
| Article Eight Consolidation, Merger and Sales |
31 |
| Section 8.01. Company May Consolidate Etc., Only on Certain Terms |
31 |
| Section 8.02. Successor Corporation Substituted For Company |
32 |
| Article Nine Supplemental Indentures |
32 |
| Section 9.01. Supplemental Indentures Without Consent of Holders |
32 |
| Section 9.02. Supplemental Indentures With Consent of Holders |
33 |
| Section 9.03. Execution of Supplemental Indentures |
33 |
| Section 9.04. Effect of Supplemental Indentures |
34 |
| Section 9.05. Conformity With Trust Indenture Act |
34 |
| Section 9.06. Reference in Securities to Supplemental Indentures |
34 |
| Article Ten Covenants |
34 |
| Section 10.01. Payment of Principal, Premium, If Any, and Interest |
34 |
| Section 10.02. Maintenance of Office or Agency |
34 |
| Section 10.03. Money For Securities Payments to Be Held in Trust |
34 |
| Section 10.04. Additional Amounts |
35 |
| Section 10.05. Company Statement As To Compliance |
36 |
| Section 10.06. Payment of Taxes and Other Claims |
36 |
| Section 10.07. Corporate Existence |
36 |
| Section 10.08. Waiver of Certain Covenants |
36 |
| Article Eleven Redemption of Securities |
37 |
| Section 11.01. Applicability of Article |
37 |
| Section 11.02. Election To Redeem; Notice To Trustee |
37 |
| Section 11.03. Selection By Trustee of Securities To Be Redeemed |
37 |
| Section 11.04. Notice of Redemption |
37 |
SOUTH PLAINS FINANCIAL,
INC.
Certain Sections of this Indenture relating to
Sections 310 through 318, inclusive, of the Trust Indenture Act of 1939, as amended:
| TRUST INDENTURE ACT SECTION |
|
INDENTURE SECTION |
| |
|
|
| §310(a)(1), (2) and (5) |
|
6.08, 6.12 |
| (a)(3) |
|
Not Applicable |
| (a)(4) |
|
Not Applicable |
| (b) |
|
6.05, 6.08, 6.09(d), 6.12 |
| §311 |
|
6.05 |
| §312(a) |
|
7.01, 7.02(a) |
| (b) |
|
7.02(b) |
| (c) |
|
Not Applicable |
| §313(a) |
|
1.01, 7.03(a) |
| (b) |
|
7.03(b) |
| (c) |
|
6.02, 7.03(a), 7.03(c) |
| (d) |
|
7.03(c) |
| §314(a)(1), (2) and (3) |
|
Not Applicable |
| (a)(4) |
|
Not Applicable |
| (b) |
|
Not Applicable |
| (c)(1) |
|
Not Applicable |
| (c)(2) |
|
Not Applicable |
| (c)(3) |
|
Not Applicable |
| (d) |
|
Not Applicable |
| (e) |
|
Not Applicable |
| §315(a) |
|
1.04(a), 9.03, 14.09 |
| (b) |
|
14.09 |
| (c) |
|
6.09(d) |
| (d) |
|
Not Applicable |
| (e) |
|
Not Applicable |
| §316(a) |
|
Not Applicable |
| (b) |
|
Not Applicable |
| (c) |
|
Not Applicable |
| §317(a) |
|
Not Applicable |
| (b) |
|
Not Applicable |
| §318(a) |
|
Not Applicable |
| (c) |
|
1.08 |
| |
|
|
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.
This SENIOR INDENTURE, dated
as of , 20 (the “Indenture”), is made by and SOUTH PLAINS FINANCIAL, INC., a Texas corporation (the “Company”),
having its principal office at 5219 City Bank Parkway, Lubbock, Texas 79407, and , not in its individual capacity but solely as
Trustee (the “Trustee”).
RECITALS
The Company has duly authorized
the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured and unsubordinated
debentures, notes or other evidences of indebtedness (the “Securities”), unlimited as to principal amount, to bear
such rates of interest, to mature at such time or times, to be issued in one or more series and to have such other provisions as
shall be fixed as hereinafter provided.
The Company has duly authorized
the execution and delivery of this Indenture and all things necessary to make this Indenture a valid agreement of the Company,
in accordance with its terms, have been done.
This Indenture is subject to
the provisions of the Trust Indenture Act of 1939, as amended, that are required to be part of this Indenture and shall, to the
extent applicable, be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE
WITNESSETH:
For and in consideration of
the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as follows:
Article
One
Definitions and Other Provisions of General Application
Section 1.01. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided in or pursuant to this Indenture or unless the context
otherwise requires:
(1)
the terms defined in this Article have the meanings assigned to them in this Article, and include the plural as well as
the singular;
(2)
all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have
the meanings assigned to them therein;
(3)
all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted
accounting principles and, except as otherwise herein expressly provided, the term “generally accepted accounting principles”
with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted
in the United States at the date of such computation;
(4)
the words “herein,” “hereof,” “hereto” 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;
(5)
the pronoun “his” refers to the masculine, feminine and neuter;
(6)
the word “or” is not exclusive;
(7)
all words in the singular include the plural and all words in the plural include the singular; and
(8)
the word “including” means “including without limitations.”
Certain terms used principally
in certain Articles or Sections hereof are defined in those Articles or Sections, as the case may be.
“Act,” when
used with respect to any Holders, has the meaning specified in Section 1.04.
“Additional Amounts”
means any additional amounts which are required hereby or by any Security, under circumstances specified herein or therein, to
be paid by the Company in respect of certain taxes imposed on Holders specified therein and which are owing to such Holders.
“Affiliate”
of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition, “control,” when used with respect to
any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting Securities, by contract or otherwise; and the terms “controlling” and “controlled”
have the meanings correlative to the foregoing.
“Authenticating Agent”
means any Person authorized by the Trustee pursuant to Section 6.12 to act on behalf of the Trustee to authenticate Securities
of one or more series.
“Bank” means
(i) any institution organized under the laws of the United States, any State of the United States, the District of Columbia, any
territory of the United States, Puerto Rico, Guam, American Samoa or the Virgin Islands which (a) accepts deposits that the depositor
has a legal right to withdraw on demand, and (b) engages in the business of making commercial loans and (ii) any trust company
organized under any of the foregoing laws.
“Board of Directors”
means the board of directors of the Company or any committee of that board duly authorized to act for the Company hereunder.
“Board Resolution”
means a copy of one or more resolutions certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors, or a duly authorized committee thereof, and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
“Business Day,”
except as may otherwise be provided herein or in any Security, means any calendar day, other than a Saturday or a Sunday, that
is neither a Legal Holiday nor a day on which banking institutions in the City of New York, State of New York, are authorized or
required by law, regulation or executive order to close.
“Called Securities”
means any Convertible Security that is called for redemption by the Company.
“Capital Stock”
means, 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”
means the U.S. Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act
of 1934, as amended, or, if at any time after the execution of this Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
“Common Stock”
means all shares now or hereafter authorized of the class of common stock of the Company presently authorized and stock of any
other class into which such shares may hereafter have been changed.
“Company”
means the Person named as the “Company” in the first paragraph of this instrument until a successor corporation shall
have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such
successor corporation, and any other obligor upon the Securities.
“Company Request”
and “Company Order” mean a written request or order, as the case may be, signed in the name of the Company by
the Chairman of the Board of Directors, the Chief Executive Officer, the Chief Operating Officer, the President, an Executive Vice
President, the Chief Financial Officer, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee.
“Conversion Price”
has the meaning specified in Section 3.01.
“Convertible Security”
or “Convertible Securities” means any Security or Securities, as the case may be, which are by their terms convertible
into Common Stock, Preferred Stock (which may be represented by depositary shares), other indebtedness of the Company, or warrants
for Common Stock, Preferred Stock or
indebtedness of the Company,
and the terms and conditions upon which such conversion or exchange shall be effected, including the initial conversion or exchange
price or rate, the conversion or exchange period, the manner in which such conversion or exchange shall be effected, applicable
adjustments, if any, and any other provision in addition to or in lieu of those described herein.
“Corporate Trust Office”
means, the office of the Trustee, at which at any particular time its corporate trust business regarding this Indenture shall be
administered, which office at the date of original execution of this Indenture is located at , Attention .
“corporation”
includes corporations, associations, companies and business trusts.
“Defaulted Interest”
has the meaning specified in Section 3.08.
“Dollars”
or “$” means a dollar or other equivalent unit in the currency of the United States, except as may otherwise
be provided herein or in any Security.
“Event of Default”
has the meaning specified in Section 5.01.
“Holder,”
in the case of any Security, means the Person in whose name such Security is registered in the Security Register.
“Indenture”
means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof, and with respect to any Security shall include the
terms of such Securities established as contemplated by Section 3.01; provided, however, that, if at any time
more than one Person is acting as Trustee under this instrument, “Indenture” shall mean, with respect to any one or
more series of Securities for which such Person is Trustee, this instrument as originally executed or as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of the or those particular series of Securities for which such Person is Trustee established as contemplated
by Section 3.01, exclusive, however, of any provisions or terms which relate solely to other series of Securities for which such
Person is Trustee, regardless of when such terms or provisions were adopted, and exclusive of any provisions or terms adopted by
means of one or more indentures supplemental hereto executed and delivered after such Person had become such Trustee but to which
such Person, as such Trustee, was not a party.
“Independent Public
Accountants” means accountants or a firm of accountants that are independent public accountants with respect to the Company
within the meaning of the Securities Act of 1933, as amended, and the rules and regulations promulgated by the Commission thereunder
who may be the independent public accountants regularly retained by the Company or who may be other independent public accountants.
Such accountants or firm shall be entitled to rely upon any Opinion of Counsel as to the interpretation of any legal matters relating
to the Indenture or certificates required to be provided hereunder.
“Interest,”
with respect to any Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable
after Maturity and, with respect to any Security which provides for the payment of Additional Amounts pursuant to Section 10.04,
includes such Additional Amounts.
“Interest Payment
Date,” when used with respect to any installment of interest on a Security of a particular series, means the date specified
in such Security or in a Board Resolution or in an indenture supplemental hereto with respect to such series as the fixed date
on which an installment of interest with respect to Securities of that series is due and payable.
“Legal Holiday,”
except as otherwise may be provided herein or in any Securities, with respect to any Place of Payment or other location, means
a Saturday, a Sunday or a day on which banking institutions or trust companies in such Place of Payment or other location are not
authorized or obligated to be open.
“Maturity,”
with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, notice of redemption,
notice of option to elect repayment or otherwise.
“Officer’s Certificate”
means a certificate signed by the Chairman of the Board of Directors, the Chief Executive Officer, the Chief Operating Officer,
the President, an Executive Vice President, the Chief Financial Officer, the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary of the Company, and delivered to the Trustee.
“Opinion of Counsel,”
except as otherwise provided herein or in any Security, means a written Opinion of Counsel from legal counsel who is reasonably
acceptable to the Trustee, who may be an employee of or counsel for the Company or other counsel.
“Original Issue Discount
Security” means a Security issued pursuant to this Indenture which provides for declaration of an amount less than the
principal thereof to be due and payable upon acceleration pursuant to Section 5.02.
“Outstanding,”
with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
|
(i) |
Securities theretofore cancelled by the Trustee or the Security Registrar or delivered to the Trustee
or the Security Registrar for cancellation; |
|
(ii) |
Securities, or portions thereof for whose payment or redemption money or repayment at the option
of the Holder, in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company)
in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders
of such Securities, provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant
to this Indenture; |
|
(iii) |
Securities, except to the extent provided in Section 4.03, with respect to which the Company has
effected defeasance and/or covenant defeasance pursuant to Section 4.03 hereof; and |
|
(iv) |
Securities which have been paid pursuant to Section 3.07 or in exchange for or in lieu of which
other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of
which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company; provided, however, that in determining whether
the Holders of the requisite principal amount of Outstanding Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder or are present at a meeting of Holders of Securities for quorum purposes and for purposes of
making the calculations required by Section 313 of the Trust Indenture Act, (i) the principal amount of an Original Issue Discount
Security that may be counted in making such determination or calculation and that shall be deemed to be outstanding for such purposes
shall be equal to the amount of the principal thereof that pursuant to the terms of such Original Issue Discount Security would
be declared (or shall have been declared to be) due and payable upon a declaration of acceleration pursuant to Section 5.02 at
the time of such determination or calculation, and (ii) the principal amount of any Security denominated other than in Dollars
that may be counted in making such determination or calculation and that shall be deemed outstanding for such purpose shall be
equal to the Dollar equivalent, determined by the Company as of the date such Security is originally issued by the Company, of
the principal amount (or, in the case of an Original Issue Discount Security, the Dollar equivalent as of such date of original
issuance of the amount determined as provided in clause (i) above) of such Security, and (iii) Securities owned by the Company
or any other obligor upon the Securities or any Affiliate of the Company or such other obligor, shall be disregarded and deemed
not to be Outstanding, except that, in determining whether the Trustee shall be protected in making any such calculation or relying
upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer
of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act
with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate
of the Company or such other obligor. |
“Paying Agent”
means any Person authorized by the Company to deliver payment of the principal of (and premium, if any) or interest on any Security
on behalf of the Company.
“Person”
means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
“Place of Payment,”
with respect to any Security, means the place or places where the principal of (and premium, if any) and interest on the Securities
of that series are payable as specified in or pursuant to Section 3.01(9) or Section 10.02.
“Predecessor Security”
of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.07
in exchange for or in lieu of a lost, destroyed, mutilated or stolen Security shall be deemed to evidence the same debt as the
lost, destroyed, mutilated or stolen Security.
“Preferred Stock”
means shares of a class or series now or hereafter authorized of the class of preferred stock of the Company presently authorized
and stock of any other class into which such shares may hereafter have been changed.
“Redemption Date,”
with respect to any Security or portion thereof to be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
“Redemption Price,”
with respect to any Security or portion thereof to be redeemed, means the price at which it is to be redeemed as determined by
or pursuant to the provisions of this Indenture.
“Regular Record Date”
for the interest payable on any Security on any Interest Payment Date therefor means the date, if any, specified in such Security
as the “Regular Record Date.”
“Responsible Officer”
when used with respect to the Trustee means any officer within the corporate trust department of the Trustee, including the vice
president, any assistant vice president, assistant treasurer, or any other officer of the Trustee who customarily performs functions
similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such Person’s knowledge of and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Indenture.
“Security”
or “Securities” means any Security or Securities, as the case may be, authenticated and delivered under this
Indenture; provided, however, that if at any time there is more than one Person acting as Trustee under this
Indenture, “Securities” with respect to the Indenture as to which such Person is Trustee shall have the meaning stated
in the first recital of this Indenture and shall more particularly mean Securities authenticated and delivered under this Indenture,
exclusive, however, of Securities of any series as to which such Person is not Trustee.
“Security Register”
and “Security Registrar” have the respective meanings specified in Section 3.06.
“Special Record Date”
for the payment of any Defaulted Interest on any Security means a date fixed by the Company pursuant to Section 3.08.
“Stated Maturity,”
with respect to any Security or any installment of principal thereof, means the date specified in such Security as the fixed date
on which the principal of such Security or such installment of principal is due and payable.
“Subsidiary”
means any corporation of which at the time of determination the Company and/or one or more Subsidiaries owns or controls directly
or indirectly more than 50% of the shares of Voting Stock.
“Trust Indenture Act”
means the Trust Indenture Act of 1939, as amended, as in force at the date as of which this instrument was executed, except as
provided in Section 9.05.
“Trustee”
means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have
become such with respect to one or more series of Securities pursuant to the applicable provisions of this Indenture, and thereafter
“Trustee” shall mean each Person who is then a Trustee
hereunder; provided, however, that if at
any time there is more than one such Person, “Trustee” shall mean each such Person and as used with respect to the
Securities of any series shall mean the Trustee with respect to the Securities of that series.
“United States,”
except as otherwise provided herein or in any Security, means the United States of America (including the states and the District
of Columbia), its territories and possessions and other areas subject to its jurisdiction.
“United States Alien,”
except as otherwise provided herein or in any Security, means any Person who, for United States Federal income tax purposes, is
a foreign corporation, a non-resident alien individual, a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal income tax purposes, a foreign corporation, a non-resident
alien individual or a non-resident alien fiduciary of a foreign estate or trust.
“U.S. Depository”
or “Depository” means, with respect to any Security issuable or issued in the form of one or more global Securities,
the Person designated as U.S. Depository by the Company pursuant to Section 3.01, which must be a clearing agency registered under
the Securities Exchange Act of 1934, as amended, and, if so provided pursuant to Section 3.01 with respect to any Security, any
successor to such Person. If at any time there is more than one such Person, “U.S. Depository” or “Depository”
shall mean, with respect to any Securities, the qualifying entity which has been appointed with respect to such Securities.
“Vice President,”
with respect to the Company or the Trustee, means any vice president, whether or not designated by a number or a word or words
added before or after the title “Vice President.”
“Voting Stock”
means stock of a corporation of the class or classes having general voting power under ordinary circumstances to elect at least
a majority of the board of directors, managers or trustees of such corporation provided that, for the purposes hereof, stock which
carries only the right to vote conditionally on the happening of an event shall not be considered voting stock whether or not such
event shall have happened.
Section 1.02. Compliance
Certificates and Opinions. Upon any application or request by the Company to the Trustee to take any action under any provision
of this Indenture, the Company shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent,
if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating
that, in the Opinion of such counsel, all such conditions precedent, if any, have been complied with, except that in the case of
any such application or request as to which the furnishing of such documents or any of them is specifically required by any provision
of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
Every certificate or opinion
with respect to compliance with a condition or covenant provided for in this Indenture and in any applicable Security (except Section
10.05) shall include:
(1)
a statement that each individual signing such certificate or opinion has read such condition or covenant and the definitions
herein and in any applicable Security relating thereto;
(2)
a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(3)
a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary
to enable him to express an informed opinion as to whether or not such condition or covenant has been complied with; and
(4)
a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 1.03. Form of Documents
Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified
Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters
and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in
one or several documents.
Any certificate or opinion
of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Company, a governmental official or officers or any other Person or Persons, stating that the information with
respect to such factual matters is in the possession of the Company unless such counsel knows, or in the exercise of reasonable
care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required
to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments
under this Indenture or any Security, they may, but need not, be consolidated and form one instrument.
Section 1.04. Acts of Holders.
(a)
Any request, demand, authorization, direction, notice, consent, waiver or other action provided by or pursuant to this Indenture
to be made, given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor
signed by such Holders in person or by an agent duly appointed in writing or a written record of voting at a meeting of the Holders.
Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record
are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments and any
such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of
the Holders signing such instrument or instruments or so voting at any such meeting. Proof of execution of any such instrument
or of a writing appointing any such agent, or of the holding by any Person of a Security, shall be sufficient for any purpose of
this Indenture and (subject to Section 315 of the Trust Indenture Act) conclusive in favor of the Trustee and the Company and any
agent of the Trustee or the Company, if made in the manner provided in this Section 1.04. The record of any meeting of Holders
of Securities shall be proved in the manner provided in Section 13.06.
Without limiting the generality
of this Section 1.04, unless otherwise established in or pursuant to a Board Resolution or set forth or determined in an Officer’s
Certificate, or established in one or more indentures supplemental hereto, pursuant to Section 3.01, a Holder, including a U.S.
Depository that is a Holder of a global Security, may make, give or take, by a proxy, or proxies, duly appointed in writing, any
request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given
or taken by Holders, and a U.S. Depository that is a Holder of a global Security may provide its proxy or proxies to the beneficial
owners of interests in any such global Security through such U.S. Depository’s standing instructions and customary practices.
Other than in those situations
set forth in Section 1.04(d), the Trustee shall fix a record date, which shall be not more than 30 days prior to the first solicitation
of such Holders, for the purpose of determining the Persons who are beneficial owners of interest in any permanent global Security
held by a U.S. Depository entitled under the procedures of such U.S. Depository to make, give or take, by a proxy or proxies duly
appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture
to be made, given or taken by Holders. If such a record date is fixed, the Holders on such record date or their duly appointed
proxy or proxies, and only such Persons, shall be entitled to make, give or take such request, demand, authorization, direction,
notice, consent, waiver or other action, whether or not such Holders remain Holders after such record date. No such request, demand,
authorization, direction, notice, consent, waiver or other action shall be valid or effective if made, given or taken more than
90 days after such record date.
(b)
The fact and date of the execution by any Person of any such instrument or writing may be proved in any reasonable manner
which the Trustee deems sufficient and in accordance with such reasonable rules as the Trustee may determine; and the Trustee
may in any instance require further proof with respect to any of the matters referred to in this Section 1.04.
(c)
The ownership, principal amount and serial numbers of Securities held by any Person, and the date of the commencement and
the date of termination of holding the same, shall be proved by the Security Register.
(d)
If the Company shall solicit from the Holders of any Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may at its option, by Board
Resolutions, fix in advance
a record date, which shall be not more than 30 days prior to the first solicitation of such Holders, for the determination of
Holders of Securities entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but
the Company shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of Securities of record
at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of
the requisite proportion of Outstanding Securities have authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities shall be computed as of such
record date; provided no such authorization, agreement or consent of the Holders of Securities shall be deemed effective
unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date.
(e)
Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Security shall
bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof
or in exchange therefor or in lieu thereof in respect of anything done or suffered to be done by the Trustee, any Security Registrar,
any Paying Agent or the Company in reliance thereon, whether or not notation of such action is made upon such Security.
Section 1.05. Notices, Etc.,
to Trustee and Company. Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document
provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(1)
the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with a Responsible Officer of the Trustee at its Corporate Trust Office, or
(2)
the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to the attention of its Treasurer at
the address of its principal office specified in the first paragraph of this Indenture or at any other address previously furnished
in writing to a Responsible Officer of the Trustee by the Company.
Section 1.06. Notice to
Holders; Waiver. Except as otherwise expressly provided herein or in any Security, where this Indenture provides for notice
to Holders of any event, such notice shall be sufficiently given to Holders if in writing and mailed, first-class postage prepaid,
to each Holder affected by such event, at his address as it appears in the Security Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such Notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency
of such notice with respect to other Holders. Any notice which is mailed in the manner herein provided shall be conclusively presumed
to have been duly given or provided. In the case by reason of the suspension of regular mail service or by reason of any other
cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
Where this Indenture provides
for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or
after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee,
but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
Notwithstanding any other provision
herein, where this Indenture provides for notice of any event to any Holder of an interest in a Global Security (whether by mail
or otherwise), such notice shall be sufficiently given if given to the Depository for such Security (or its designee), according
to the applicable procedures of such Depository, if any, prescribed for the giving of such notice.
Section 1.07. Language of
Notices. Any request, demand, authorization, direction, notice, consent, election or waiver required or permitted under this
Indenture shall be in the English language, except that, if the Company so elects, any published notice may be in an official language
of the country of publication.
Section 1.08. Conflict With
Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with the duties imposed pursuant to Section 318(c)
of the Trust Indenture Act, such imposed duties shall control.
Section 1.09. Effect of
Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
Section 1.10. Successors
and Assigns. All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
Section 1.11. Separability
Clause. In case any provision in this Indenture or any Security shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.12. Benefits of
Indenture. Nothing in this Indenture or any Security, express or implied, shall give to any Person, other than the parties
hereto, any Security Registrar, any Paying Agent and their respective successors hereunder and the Holders, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
Section 1.13. Governing
Law. This Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York,
applicable to agreements made or instruments entered into and, in each case, performed in said state.
Section 1.14. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security, or the last day on which a Holder
has the right to convert these Securities, is not a Business Day at any Place of Payment, then (notwithstanding any other provision
of this Indenture or any Security other than a provision in any Security that specifically states that such provision shall apply
in lieu of this Section 1.14) payment of interest or any Additional Amounts or principal (and premium, if any) or conversion of
the Securities need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such
Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity,
or the last such day of conversion, and no interest shall accrue on the amount so payable for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may be.
Section 1.15. Immunity of
Shareholders, Directors, Officers and Agents of the Company. 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 past,
present or future shareholder, employee, officer or director, as such, of the Company or of any predecessor or successor, either
directly or through the Company or any predecessor or successor, under any rule of law, statute or constitutional provision or
by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance of the Securities by the Holders and as part of the consideration for the issue of the Securities.
Section 1.16. Waiver of
Jury Trial. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Section 1.17. When Securities
Disregarded. In determining whether the Holders of the required aggregate principal amount of Securities have concurred in
any direction, waiver or consent, Securities owned by the Company or any Affiliate of the Company shall be disregarded and deemed
not to be outstanding, except that, for the purpose of determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities which a Responsible Officer of the Trustee actually knows are so owned shall be so
disregarded. Also, subject to the foregoing, only Securities outstanding at the time shall be considered in any such determination.
Section 1.18. USA Patriot
Act. The parties hereto acknowledge that in accordance with Section 326 of 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. The parties to this
Indenture agree that they shall provide the Trustee with such information as they may request in order to satisfy the requirements
of the USA Patriot Act.
Section 1.19. Force Majeure.
In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder
arising out of or caused by, directly or indirectly, forces
beyond its control, including, without limitation, strikes, work stoppages,
accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, the effects
of any epidemic, pandemic, or disease outbreak, or continuation of any epidemic, pandemic, or disease outbreak, affecting the United
States, including, but not limited to, all measures taken to protect the health, safety and welfare of the general population of
the United States or of any state of the United States or political subdivision thereof, and interruptions, loss or malfunctions
of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use
reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable
under the circumstances.
Section 1.20. Calculations.
Except as otherwise provided herein, the Company will be responsible for making all calculations called for under this Indenture
or the Securities. The Company will make all such calculations in good faith and, absent manifest error, its calculations will
be final and binding on the Holders. The Company will provide a schedule of its calculations to the Trustee and the Trustee is
entitled to rely conclusively upon the accuracy of such calculations without independent verification. The Trustee will deliver
a copy of such schedule to any Holder upon the written request of such Holder.
Article
Two
Securities Forms
Section 2.01. Forms Generally.
Each Security and temporary or permanent global Security issued pursuant to this Indenture shall be in the form established by
or pursuant to a Board Resolution or in one or more indentures supplemental hereto, shall have appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this Indenture or any indenture supplemental hereto and may
have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may, consistently
herewith, be determined by the officers of the Company executing such Security, as evidenced by their execution of such Security.
Definitive Securities shall
be printed, lithographed or engraved or produced by any combination of these methods on a steel engraved border or steel engraved
borders or may be produced in any other manner, all as determined by the officers of the Company executing such Securities, as
evidenced by their execution of such Securities.
Section 2.02. Form of Trustee’s
Certificate of Authentication. Subject to Section 6.12, the Trustee’s certificate of authentication shall be in substantially
the following form:
This certificate represents
Securities of the series designated therein referred to in the within-mentioned Indenture.
| Dated: , 20 |
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not in its individual capacity but solely as Trustee |
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By: |
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Authorized Signatory |
Section 2.03. Securities
in Global Form. If Securities of a series are issuable in global form, any such Security may provide that it shall represent
the aggregate amount of Outstanding Securities of such series from time to time endorsed thereon and may also provide that the
aggregate amount of Outstanding Securities represented thereby may from time to time be increased or reduced to reflect exchanges.
Any endorsement of any Security in global form to reflect the amount, or any increase or decrease in the amount, or changes in
the rights of Holders, of Outstanding Securities represented thereby shall be made in such manner and by such Person or Persons
as shall be specified therein or in the Company Order to be delivered pursuant to Section 3.04 or 3.05 with respect thereto. Subject
to the provisions of Section 3.04 and, if applicable, Section 3.05, the Trustee shall deliver and redeliver any Security in permanent
global form in the manner and upon instructions given by the Person or Persons specified therein or in the applicable Company Order.
If a Company Order pursuant to Section 3.04 or 3.05 has been, or simultaneously is, delivered, any instructions by the Company
with respect to a Security in global form shall be in writing but need not comply with Section 1.02 and need not be accompanied
by an Opinion of Counsel.
The provisions of the immediately
preceding sentence shall apply to any Security represented by a Security in global form if such Security was never issued and sold
by the Company and the Company delivers to the Trustee the Security in global form together with written instructions (which need
not comply with Section 1.02 and need not be accompanied by an Opinion of Counsel) with regard to the reduction in the principal
amount of Securities represented thereby.
Notwithstanding the provisions
of Section 3.08, payment of principal of and any premium and interest on any Security in permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions
of Section 3.09, the Company, the Trustee and any agent of the Company and the Trustee shall treat as the Holder of such principal
amount of Outstanding Securities represented by a permanent global Security the Holder of such permanent global Security in registered
form.
Article
Three
The Securities
Section 3.01. Amount Unlimited;
Issuable in Series. The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture
is unlimited.
The Securities may be issued
in one or more series. There shall be established in or pursuant to one or more Board Resolutions, and set forth in an Officer’s
Certificate, or established in one or more indentures supplemental hereto,
(1)
the title of the Securities and the series in which such Securities shall be included;
(2)
any limit upon the aggregate principal amount of the Securities of such title or the Securities of such series which may
be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 3.05, 3.06, 3.07, 9.06 or 11.07 or the
terms of such Securities);
(3)
whether any Securities of the series are to be issuable initially or otherwise in global form and, if so, (i) whether beneficial
owners of interests in any such global Security may exchange such interest for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner specified
in Section 3.06, and (ii) the name of the depository or the U.S. Depository, as the case may be, with respect to any global Security;
(4)
the date as of which any global Security representing Outstanding Securities of the series shall be dated if other than
the date of original issuance of the first Security of the series to be issued;
(5)
the terms, if any, upon which the Securities of any series may be convertible into or exchanged for Common Stock, Preferred
Stock (which may be represented by depositary shares), other indebtedness of the Company or another obligor, or warrants for Common
Stock, Preferred Stock or indebtedness or other securities of any kind of the Company or any other obligor, and the terms and conditions
upon which such conversion or exchange shall be effected, including the initial conversion or exchange price or rate (the “Conversion
Price”), the conversion or exchange period, the manner in which such conversion or exchange shall be effected, applicable
adjustments, if any, and any other provision in addition to or in lieu of those described herein;
(6)
the date or dates, or the method, if any, by which such date or dates shall be determined, on which the principal and premium,
if any, of such Securities is payable;
(7)
the rate or rates at which such Securities shall bear interest, if any, or the method, if any, by which such rate or rates
are to be determined, the date or dates, if any, from which such interest shall accrue or the method, if any, by which such date
or dates are to be determined, the Interest Payment Dates, if any, on which such interest shall be payable and the Regular Record
Date, if any, for the interest payable on Securities on any Interest Payment Date, whether and under what circumstances Additional
Amounts on such Securities or any of them shall be payable, and the basis upon which interest shall be calculated if other than
that of a 360-day year of twelve 30-day months;
(8)
the place or places, if any, where the principal of (and premium, if any) and interest (including Additional Amounts), if
any, on such Securities shall be payable, any Securities of the series may be surrendered
for registration of transfer, Securities
of the series may be surrendered for exchange or conversion and notices or demands to or upon the Company in respect of the Securities
of the series and this Indenture may be served;
(9)
whether and the terms and conditions upon which the Securities of the series or any of them are to be redeemable at the
option of the Company and, if so, the period or periods within which, the price or prices at which and the other terms and conditions
upon which such Securities may be redeemed, in whole or in part, at the option of the Company;
(10)
whether any terms and conditions upon which the Company is obligated to redeem, or purchase Securities of the series or
any of them pursuant to any sinking fund or at the option of any Holder thereof and, if so, the period or periods within which,
the price or prices at which and the other terms and conditions upon which such Securities shall be redeemed or purchased, in whole
or in part, pursuant to such obligation, and any provisions for the remarketing of the Securities of the series so redeemed or
purchased;
(11)
the denominations in which Securities of the series, if any, shall be issuable if other than denominations of $1,000 and
any integral multiple thereof;
(12)
if other than the principal amount thereof, the portion of the principal amount of the Securities of the series of any of
them which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 5.02 or the method by
which such portion is to be determined;
(13)
if the principal of (and premium, if any) or interest, if any, on or any Additional Amounts in respect of the Securities
of the series or any of them are to be payable, at the election of the Company or a Holder thereof, in a coin or currency, composite
currencies or currency unit or units other than that in which the Securities of the series or any of them are stated to be payable,
the period or periods within which, and the terms and conditions upon which, such election may be made;
(14)
whether the amount of payments of principal of (and premium, if any) or interest (including Additional Amounts), if any,
on the Securities of the series may be determined with reference to an index, formula or other method (which index, formula or
method may be based, without limitation, on one or more currencies, currency units, composite currencies, commodities, equity indices
or other indices), and, if so, the terms and conditions upon which and the manner in which such amounts shall be determined and
paid or payable;
(15)
any deletions from, modifications of or additions to the Events of Default or covenants of the Company with respect to the
Securities of the series or any of them, whether or not such Events of Default or covenants are consistent with the Events of Default
or covenants set forth herein;
(16)
the applicability, if any, of Section 4.03 to the Securities of the series and any provisions in modification of, in addition
to or in lieu of any of the provisions of Section 4.03;
(17)
if the Securities of the series or any of them are to be issued upon the exercise of warrants, the time, manner and place
for such Securities to be authenticated and delivered;
(18)
if the Securities of the series are to be issuable in definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions,
then the form and terms of such certificates, documents or conditions;
(19)
if there is more than one Trustee, the identity of the Trustee and, if not the Trustee, the identity of each Security Registrar,
Paying Agent and/or Authenticating Agent with respect to the Securities of the series;
(20)
whether any of the Securities of a series shall be issued as Original Issue Discount Securities; and
(21)
any other terms of the Securities of the series or any of them.
All Securities of any one series
shall be substantially identical except as to denomination and the rate or rates of interest, if any, and Stated Maturity, the
date from which interest, if any, shall accrue and except as may otherwise be provided by the Company in or pursuant to one or
more Board Resolutions and set forth in such Officer’s Certificate or in any indenture or indentures supplemental hereto
pertaining to such series of Securities.
All Securities of any one series need not be issued at the same time and, unless otherwise
so provided by the Company, a series may be reopened for issuances of additional Securities of such series.
If any of the terms of the
Securities of any series were established by action taken by or pursuant to a Board Resolution, the Board Resolution shall be delivered
to the Trustee at or prior to the delivery of the Officer’s Certificate setting forth the terms of such series.
Section 3.02. Denominations.
Unless otherwise established with respect to any Securities pursuant to Section 3.01, the Securities of each series denominated
in Dollars shall be issuable in registered form without coupons in denominations of $1,000 and any integral multiple thereof. Securities
not denominated in Dollars shall be issuable in such denominations as are established with respect to such Securities pursuant
to Section 3.01.
Section 3.03. Securities
in Foreign Countries. Whenever this Indenture provides for (i) any action by, or the determination of any of the rights of,
Holders of Securities of any series in which not all of such Securities are denominated in the same currency, or (ii) any distribution
to Holders of Securities, in the absence of any provision to the contrary in the form of Security of any particular series, any
amount in respect of any Security denominated in a currency other than United States dollars shall be treated for any such action
or distribution as that amount of United States dollars that could be obtained for such amount on such reasonable basis of exchange
and as of the record date with respect to registered Securities of such series (if any) for such action, determination of rights
or distribution (or, if there shall be no applicable record date, such other date reasonably proximate to the date of such action,
determination of rights or distribution) as the Company may specify in a written notice to the Trustee or, in the absence of such
written notice, as the Trustee may determine.
Section 3.04. Execution,
Authentication, Delivery and Dating. The Securities shall be executed on behalf of the Company by its Chairman of the Board,
its Chief Executive Officer, its President or its Chief Financial Officer and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be manual, electronic or facsimile.
Securities bearing the manual,
electronic or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery
of such Securities or did not hold such offices at the date of such Securities.
At any time and from time to
time after the execution and delivery of this Indenture, the Company may deliver Securities of any series, executed by the Company,
to the Trustee for authentication, and, provided that the Board Resolution or Resolutions and Officer’s Certificate or supplemental
indenture or indentures with respect to such Securities referred to in Section 3.01 and a Company Order for the authentication
and delivery of such Securities, has been delivered to the Trustee, the Trustee in accordance with the Company Order and subject
to the provisions hereof of such Securities shall authenticate and deliver such Securities.
The Trustee shall not be required
to authenticate or to cause an Authenticating Agent to authenticate any Securities if the issue of such Securities pursuant to
this Indenture will affect the Trustee’s own rights, duties, liabilities or immunities under the Securities and this Indenture
or otherwise in a manner which is not reasonably acceptable to the Trustee or if the Trustee, being advised by counsel, determines
that such action may not lawfully be taken.
Each Security shall be dated
the date of its authentication.
No Security shall be entitled
to any benefit under this Indenture or be valid or obligatory for any purpose, unless there appears on such Security a certificate
of authentication substantially in the form provided for in Section 2.02 or 6.12 executed by or on behalf of the Trustee by the
manual signature of one of its authorized officers, and such certificate upon any Security shall be conclusive evidence, and the
only evidence, that such Security has been duly authenticated and delivered hereunder.
Section 3.05. Temporary
Securities. Pending the preparation of definitive Securities of any series, the Company may execute and deliver to the Trustee
and, upon Company Order the Trustee shall authenticate and deliver, in the manner provided in Section 3.04, temporary Securities
of such series which are printed, lithographed, typewritten, photocopied or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they are issued, in registered form without coupons and
with such appropriate insertions, omissions, substitutions and other variations as the officers of the Company executing
such Securities
may determine, as conclusively evidenced by their execution of such Securities. In the case of Securities of any series, such temporary
Securities may be in global form.
Except in the case of temporary
Securities in global form, which shall be exchanged in accordance with the provisions thereof, if temporary Securities of any series
are issued, the Company shall cause definitive Securities of such series to be prepared without unreasonable delay. After the preparation
of definitive Securities of any series, the temporary Securities of such series, if any, shall be exchangeable upon request for
definitive Securities of such series containing identical terms and provisions upon surrender of the temporary Securities of such
series at an office or agency of the Company maintained for such purpose pursuant to Section 10.02, without charge to any Holder.
Upon surrender for cancellation of any one or more temporary Securities of any series, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of authorized denominations
of the same series containing identical terms and provisions. Unless otherwise specified as contemplated by Section 3.01 with respect
to a temporary global Security, until so exchanged the temporary Securities of any series shall in all respects be entitled to
the same benefits under this Indenture as definitive Securities of such series.
Section 3.06. Registration,
Transfer and Exchange. With respect to the Securities of each series, if any, the Company shall cause to be kept, at an office
or agency of the Company maintained pursuant to Section 10.02, a register (each such register being herein sometimes referred to
as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of the Securities of each series and of transfers of the Securities of such series. In the event that
the Trustee shall not be the Security Registrar, it shall have the right to examine the Security Register at all reasonable times.
is hereby initially appointed as Security Registrar for each series of Securities.
Upon surrender for registration
of transfer of any Security of any series at any office or agency of the Company maintained for such series pursuant to Section
10.02, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees,
one or more new Securities of the same series of any authorized denominations, of a like aggregate principal amount bearing a number
not contemporaneously outstanding and containing identical terms and provisions.
At the option of the Holder,
Securities of any series may be exchanged for other Securities of the same series containing identical terms and provisions, in
any authorized denominations, and of a like aggregate principal amount, upon surrender of the Securities to be exchanged at any
such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing,
except as otherwise specified as contemplated by Section 3.01, any global Security of any series shall be exchangeable for Securities
of such series only if (i) the Depository is at any time unwilling or unable or ineligible to continue as Depository and a successor
depository is not appointed by the Company within 90 days of the date the Company is so notified in writing, (ii) the Company executes
and delivers to the Trustee a Company Order to the effect that such global Security shall be so exchangeable, or (iii) an Event
of Default has occurred and is continuing with respect to the Securities and the Company or the Depository shall request such exchange.
If the beneficial owners of interests in a global Security are entitled to exchange such interests for Securities of such series
and of like tenor and principal amount of any authorized form and denomination, as specified as contemplated by Section 3.01, then
without unnecessary delay but in any event not later than the earliest date on which such interests may be so exchanged, the Company
shall deliver to the Trustee definitive Securities of that series in aggregate principal amount equal to the principal amount of
such global Security, executed by the Company. On or after the earliest date on which such interests may be so exchanged, such
global Security shall be surrendered from time to time by the U.S. Depository or such other depository as shall be specified in
the Company Order with respect thereto, and in accordance with instructions given to the Trustee and the U.S. Depository or such
other depository, as the case may be (which instructions shall be in writing but need not comply with Section 1.02 or be accompanied
by an Opinion of Counsel), as shall be specified in the Company Order with respect thereto to the Trustee, as the Company’s
agent for such purpose, to be exchanged, in whole or in part, for definitive Securities of the same series without charge. The
Trustee shall authenticate and make available for delivery, in exchange for each portion of such surrendered global Security, a
like aggregate principal amount of definitive Securities of the same series of authorized denominations and of like tenor as the
portion of such global Security to be exchanged; provided, however, that no such exchanges may occur during
a period beginning at the opening of business 15 days before any selection of Securities of such series to be redeemed and ending
on the relevant Redemption Date. Promptly following any such exchange in part, such global Security shall be returned by the Trustee
to such Depository or the U.S. Depository, as the case
may be, or such other Depository or U.S. Depository referred to above in
accordance with the instructions of the Company referred to above, and the Trustee shall endorse such global Security to reflect
the decrease in the principal amount thereof resulting from such exchange. If a Security is issued in exchange for any portion
of a global Security after the close of business at the office or agency where such exchange occurs on (i) any Regular Record Date
and before the opening of business at such office or agency on the relevant Interest Payment Date, or (ii) any Special Record Date
and before the opening of business at such office or agency on the related proposed date for payment of interest or Defaulted Interest,
as the case may be, interest will not be payable on such Interest Payment Date or proposed date for payment, as the case may be,
in respect of such Security, but will be payable on such Interest Payment Date or proposed date for payment, as the case may be,
only to the Person to whom interest in respect of such portion of such global Security is payable in accordance with the provisions
of this Indenture.
All Securities endorsed thereon
issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company evidencing the
same debt, and entitling the Holders thereof to the same benefits under this Indenture as the Securities surrendered upon such
registration of transfer or exchange.
Every Security presented or
surrendered for registration of transfer or for exchange, redemption or conversion shall (if so required by the Company or the
Security Registrar for such series of Security presented) be duly endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Company and such Security Registrar duly executed by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be
made for any registration of transfer or exchange, redemption or conversion of Securities, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer
or exchange of Securities, other than exchanges pursuant to Section 3.05, 9.06 or 11.07 not involving any transfer.
Except as otherwise specified
as contemplated by Section 3.01, the Company shall not be required (i) to issue, register the transfer of or exchange any Securities
of any series during a period beginning at the opening of business 15 days before the day of the selection for redemption of Securities
of such series under Section 11.03 and ending at the close of business on the day of such selection, or (ii) to register the transfer
of or exchange any Security so selected for redemption in whole or in part, except in the case of any Security to be redeemed in
part, the portion thereof not to be redeemed, or (iii) to issue, register the transfer of or exchange any Security which, in accordance
with its terms specified as contemplated by Section 3.01, has been surrendered for repayment at the option of the Holder, except
the portion, if any, of such Security not to be repaid.
Section 3.07. Mutilated,
Destroyed, Lost and Stolen Securities. If any mutilated Security is surrendered to the Trustee, subject to the provisions of
this Section 3.07, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security
of the same series containing identical terms and of like principal amount and bearing a number not contemporaneously outstanding.
If there be delivered to the
Company and to the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security, and (ii) such
security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence
of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute
and upon its request in a Company Order the Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Security, a new Security of the same series containing identical terms and of like principal amount and
bearing a number not contemporaneously outstanding.
Notwithstanding the foregoing
provisions of this Section 3.07, in case the outstanding principal balance of 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 3.07, the Company may require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith and upon issuance of any new Security in lieu of any destroyed, lost or stolen Securities, the Company may require that
the cost of obtaining a security or indemnity with respect thereto as referenced in this Section 3.07 be borne by the Person requesting
such new Security from the Company and Trustee.
Every new Security of any series
issued pursuant to this Section 3.07 in lieu of any destroyed, lost or stolen Security shall constitute a separate obligation of
the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series.
The provisions of this Section
3.07 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 3.08. Payment of
Interest; Interest Rights Preserved. Interest on any Security which is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities)
is registered as of the close of business on the Regular Record Date for such interest.
Any interest on any Security
of any series which shall be payable, but shall not be punctually paid or duly provided for, on any Interest Payment Date for such
Security (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Regular
Record Date by virtue of having been such Holder; and such Defaulted Interest may be paid by the Company, at its election
in each case, as provided in Clause (1) or (2) below:
(1)
The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities affected (or
their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount
of Defaulted Interest proposed to be paid on each such Security and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of the proposed
payment. Money will be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this Clause provided.
The Company also shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee, in the name and at the expense of the Company shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be sent to each Holder of such Securities at his address
as it appears in the Security Register not less than 10 days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having been sent as aforesaid, such Defaulted Interest shall be
paid to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable pursuant to the following Clause (2).
(2)
The Company may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment pursuant to this Clause, such payment shall be deemed
practicable by the Trustee.
For any Securities of any series
that bear interest and are issued in global form, the Company shall make through the Paying Agent, all payments of principal and
interest on the Securities in immediately available funds to the Depository or its nominee, in accordance with the applicable procedures
of the Depository. At the option of the Company, interest on Securities of any series that bear interest that are not in global
form, may be paid through the Paying Agent by mailing a check to the address of the Person entitled thereto as such address shall
appear in the Security Register.
Subject to the foregoing provisions
of this Section 3.08 and Section 3.06, each Security delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by
such other Security.
Section 3.09. Persons Deemed
Owners. Prior to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose
of receiving payment of principal of (and premium, if any), and (subject to Sections 3.06 and 3.08) interest on or any Additional
Amounts with respect to, such Security and for all other purposes whatsoever, whether or not any payment with respect to such
Security
be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the
contrary.
Section 3.10. Cancellation.
All Securities surrendered for payment, redemption, registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee or the Security Registrar, be delivered to the Trustee or the
Security Registrar, and any such Securities and Securities surrendered directly to the Trustee or the Security Registrar for any
such purpose shall be promptly cancelled by the Trustee or the Security Registrar, as the case may be. The Company may at any time
deliver to the Trustee or the Security Registrar for cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee or the Security Registrar, as the case may be. No Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section 3.10, except as expressly permitted by this Indenture or as otherwise specified as contemplated
by Section 3.01. All cancelled Securities held by the Trustee shall be retained by the Trustee and disposed in accordance with
its customary practices. The Trustee upon the written request of the Company shall promptly notify the Company of all cancelled
Securities.
Section 3.11. Computation
of Interest. Except as otherwise specified as contemplated by Section 3.01 for Securities of any series, interest on the Securities
of each series shall be computed on the basis of 360-day year of twelve 30-day months.
Section 3.12. Cusip Numbers.
The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and if so, the Trustee shall
use “CUSIP” numbers in notices of redemption as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any
notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and
any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee
of any change in the “CUSIP” numbers.
Article
Four
Satisfaction and Discharge
Section 4.01. Satisfaction
and Discharge of Indenture. Upon the direction of the Company in an Officer’s Certificate, this Indenture shall cease
to be of further effect with respect to any series of Securities specified in such Officer’s Certificate (except as to any
surviving rights of registration of transfer or exchange of Securities of such series herein expressly provided for and any right
to receive Additional Amounts, as provided in Section 10.04), and the Trustee, on receipt of an Officer’s Certificate, at
the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to such
series, when:
(1)
either
(A) all Securities of such series theretofore
authenticated and delivered (other than (i) Securities of such series which have
been destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.07, and (ii) Securities of such series
for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid
to the Company or discharged from such trust, as provided in Section 10.03) have been delivered to the Trustee for cancellation;
or
(B) all Securities of such series thereto not
theretofore delivered to the Trustee for cancellation
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(i) |
have become due and payable, or |
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(ii) |
will become due and payable at their Stated Maturity within one year and such Securities are not
convertible into other Securities, or |
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(iii) |
if redeemable at the option of the Company, such Securities are not convertible into other Securities
and are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the |
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|
Company, and the Company, in the case of (i), (ii) or (iii) above,
has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose, a sum of money in an amount sufficient
to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest, or any Additional Amounts with respect thereto, to the date of such deposit (in the
case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be; |
(2)
the Company has paid or caused to be paid all other sums payable hereunder by the Company ; and
(3)
the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture as to such series have been
complied with.
In the event there are two
or more Trustees hereunder, then the effectiveness of any such instrument shall be conditioned upon receipt of such instruments
from all Trustees hereunder.
Notwithstanding the satisfaction
and discharge of this Indenture with respect to any series of Securities, the obligations of the Company to the Trustee under Section
6.07 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of this Section 4.01, the
obligations of the Trustee under Section 4.02 and the last paragraph of Section 10.03 shall survive such satisfaction and discharge.
Section 4.02. Application
of Trust Money. Subject to the provisions of the last paragraph of Section 10.03, all money deposited with the Trustee pursuant
to Section 4.01 or this Section 4.02 shall be held in trust and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and any interest or
any Additional Amounts for whose payment such money has been deposited with the Trustee; but such money need not be segregated
from other funds except to the extent required by law.
All monies deposited with the
Trustee pursuant to Section 4.01 (and held by it or any Paying Agent) for the payment of Securities subsequently converted shall
be returned to the Company upon Company Request.
Section 4.03. Satisfaction,
Discharge and Defeasance of Securities of Any Series. If pursuant to Section 3.01 provision is made for defeasance of Securities
of any series pursuant to this Section 4.03, the Company shall be deemed to have paid and discharged the entire indebtedness on
all the Outstanding Securities of such series and the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of such indebtedness, when:
(1)
either
(A) with respect to all Outstanding Securities of such
series,
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(i) |
the Company has deposited or caused to be deposited with the Trustee, as trust funds in trust for
such purpose, an amount sufficient to pay and discharge the entire indebtedness on all Outstanding Securities of such series for
principal (and premium, if any), any Additional Amounts, and interest to the Stated Maturity or any Redemption Date as contemplated
by the penultimate paragraph of this Section 4.03, as the case may be; or |
|
(ii) |
with respect to any Series of Securities which are denominated in United States dollars, the Company
has deposited or caused to be deposited with the Trustee, as obligations in trust for such purpose, such amount of direct obligations
of, or obligations the timely payment of the principal of and interest on which are fully guaranteed by, the United States of America
and which are not callable at the option of the issuer thereof as will, together with the income to accrue thereon without consideration
of any reinvestment thereof, be sufficient to pay and discharge the entire indebtedness on all |
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Outstanding Securities of such series
for principal (and premium, if any), any Additional Amounts, and interest to the stated Maturity or any Redemption Date as contemplated
by the penultimate paragraph of this Section 4.03; or |
(B)
the Company has properly fulfilled such other means of satisfaction and discharge as is specified, as contemplated by Section
3.01, to be applicable to the Securities of such series; and
(2)
the Company has paid or caused to be paid all other sums payable hereunder with respect to the Outstanding Securities of
such series; and
(3)
the Company has delivered to the Trustee a certificate signed by a nationally recognized firm of Independent Public Accountants
certifying as to the sufficiency of the amounts deposited pursuant to subsections (A) (i) or (ii) of this Section for payment of
the principal (and premium, if any) and interest on the dates such payments are due, an Officer’s Certificate and an Opinion
of Counsel, each such Certificate and opinion stating that no Event of Default or event which with notice or lapse of time or both
would become an Event of Default with respect to such Securities shall have occurred and all conditions precedent herein provided
for relating to the satisfaction and discharge of the entire indebtedness on all Outstanding Securities of any such series have
been complied with; and
(4)
the Company has delivered to the Trustee
(A) an opinion of independent counsel, which may be
based upon a ruling from the Internal Revenue Service that the Holders of
the Securities of such series will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to Federal income tax on the same amount and in the same manner and at the same times,
as would have been the case if such deposit, defeasance and discharge had not occurred; and
(B) if the Securities of such series are then listed
on a national securities exchange, an Opinion of Counsel that the Securities
of such series will not be delisted as a result of the exercise of this option.
Any deposits with the Trustee
referred to in subsection (1) (A) of this Section 4.03 shall be irrevocable. If any Outstanding Securities of such series are to
be redeemed prior to their Stated Maturity, whether pursuant to any optional redemption or repayment provisions or in accordance
with any mandatory sinking fund requirement, the Company shall make arrangements for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company.
Upon the satisfaction of the
conditions set forth in this Section 4.03 with respect to all the Outstanding Securities of any series, the terms and conditions
of such series, including the terms and conditions with respect thereto set forth in this Indenture, other than the provisions
of Sections 3.06, 3.07, and 10.02, other than the right of Holders of such series to receive, from the trust fund described in
this Section 4.03, payment of the principal (and premium, if any) of, the interest on or any Additional Amounts with respect to
such Securities when such payments are due, other than any right of conversion of such Securities and the rights, powers, duties
and immunities of the Trustee hereunder and the Company’s obligations related thereto, shall no longer be binding upon, or
applicable to, the Company except those responsibilities and obligations which by the terms of the Indenture survive the termination
of the Indenture; provided that the Company shall not be discharged from any payment obligations in respect of Securities
of such series which are deemed not to be Outstanding under clause (iii) of the definition thereof if such obligations continue
to be valid obligations of the Company under applicable law.
Article
Five
Remedies
Section 5.01. Events of
Default. “Event of Default,” wherever used herein with respect to Securities of any series, means any one of the
following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative
or governmental body unless such event is specifically deleted or modified in or pursuant to the supplemental indenture, Board
Resolution or Officer’s Certificate establishing the terms of such series pursuant to this Indenture):
(1) default in the payment of any installment of interest upon
any Security of that series, as and when the same shall become
due and payable, and continuance of such default for a period of 30 days;
(2) default in the payment of the principal of or premium, if
any, on any Security of that series as and when the same shall
become due and payable, whether at Maturity, upon redemption, by declaration, upon required repurchase or otherwise;
(3) default in the payment of any sinking fund payment with
respect to any Security of that series as and when the same shall
become due and payable;
(4) failure by the Company to deliver the required securities,
together with cash in lieu of fractional securities, or other
rights upon an appropriate conversion or exchange election by any Holder of Convertible Securities, and continuance of such default
for a period of 10 days;
(5) 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 in the Securities of that series, in any resolution of the Board of Directors authorizing the issuance of that series of
Securities, in this Indenture with respect to such series or in any supplemental Indenture with respect to such series (other than
a covenant a default in the performance of which is elsewhere in this Section specifically dealt with), continuing for a period
of 90 days after the date on which written notice specifying such failure and requiring the Company to remedy the same shall have
been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of
at least 25% in principal amount of the Securities of that series at the time Outstanding;
(6) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, and adjudging it
a bankrupt or insolvent or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official)
of the Company or for any substantial part of its property, or ordering the winding-up or liquidation of its affairs, and such
decree or order shall remain unstayed and in effect for a period of 60 consecutive days;
(7) the Company shall commence a voluntary case or proceeding
under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or shall consent to the entry of an order for relief in any 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 for any substantial part of its property, or shall make any general assignment for the
benefit of creditors, or shall fail generally to pay its debts as they become due or shall take any corporate action in furtherance
of any of the foregoing; or
(8) any other Event of Default provided with respect to
Securities of that series.
Section 5.02. Acceleration
of Maturity; Rescission and Annulment. Unless the Board Resolution or supplemental indenture establishing such series
provides otherwise, if an Event of Default (other than an Event of Default specified in Section 5.01(6) or 5.01(7)) with respect
to Securities of any series at the time outstanding occurs and is continuing, then the Trustee or the Holders of not less than
25% in principal amount of the Outstanding Securities of that series may declare the principal of all the Securities of that series,
and accrued and unpaid interest, if any, thereon, or such lesser amount as may be provided for in the Securities of that series,
to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by the Holders), and upon
any such declaration such principal or such lesser amount, together with accrued and unpaid interest, if any, thereon, shall become
immediately due and payable. Unless the Board Resolution or supplemental indenture establishing such series provides otherwise,
if an Event of Default specified in Section 5.01(6) or 5.01(7) with respect to Securities of any series at the time Outstanding
occurs, the principal amount of all the Securities of that series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof), together with accrued
and unpaid interest, if any, thereon, shall automatically, and without any declaration or other action on the part of the Trustee
or any Holder, become immediately due and payable.
At any time after such a declaration
of acceleration with respect to Securities of any series has been made and before a judgment or decree for payment of the money
due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of not less than a majority in principal
amount of the Outstanding Securities of that series, by written notice to the Company and the Trustee, may waive all defaults with
respect to all affected series, and may rescind and annul such declaration and its consequences if:
(1)
the Company has paid or deposited with the Trustee a sum sufficient to pay
(A) all overdue installments of interest on and any
Additional Amounts payable in respect of all Securities of such series that
have become due otherwise than by such declaration of acceleration,
(B) the principal of (and premium, if any, on) any
Securities of such series which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate or rates borne by or provided for in such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest or any Additional
Amounts, which have become due otherwise than by such declaration of acceleration, at the rate or rates borne by or provided for
in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel as provided in Section 6.07 hereof; and
(2)
all Events of Default with respect to Securities of such series, other than the non-payment of the principal of Securities
of that series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section
5.13.
No such rescission shall affect
any subsequent default or impair any right consequent thereon.
Section 5.03. Collection
of Indebtedness and Suits For Enforcement By Trustee. The Company covenants that if:
(1)
default is made in the payment of any installment of interest on or any Additional Amounts payable in respect of any Security
when such interest or Additional Amounts shall have become due and payable and such default continues for a period of 30 days,
or
(2)
default is made in the payment of the principal of (or premium, if any, on) any Security at its Maturity,
then the Company will, upon
demand of the Trustee, pay to the Trustee, for the benefit of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal (and premium, if any) and interest or Additional Amounts, if any, with interest upon the overdue
principal (and premium, if any) and, to the extent that payment of such interest shall be legally enforceable, upon overdue installments
of interest or any Additional Amounts, at the rate or rates borne by or provided for in such Securities, and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay
such amounts, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection
of the sums so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may enforce the same against
the Company or any other obligor upon such Securities and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with
respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in
this Indenture or such Securities or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 5.04. Trustee May
File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property
of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand on the Company for the payment of any overdue principal, premium or interest) shall be entitled and empowered,
by intervention in such proceeding or otherwise,
(1)
to file and prove a claim for the whole amount or such lesser amount as may be provided for in the Securities of such series,
of principal (and premium, if any) and interest and any Additional Amounts owing and unpaid in respect of the Securities and to
file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents or counsel) and of the Holders
allowed in such judicial proceeding, and
(2)
to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each
Holder 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, 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 6.07.
Nothing herein contained shall
be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder 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 in any such proceeding.
Section 5.05. Trustee May
Enforce Claims Without Possession of Securities. All rights of action and claims under this Indenture or any of the Securities
may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery or judgment, after provision for the payment of the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, shall be for the ratable benefit of the Holders of the Security in respect
of which such judgment has been recovered.
Section 5.06. Application
of Money or Property Collected. Subject to the provisions of Article Four, any money or property collected by the Trustee pursuant
to this Article Five 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 or property on account of principal (and premium, if any), interest or any Additional Amounts, upon presentation
of the Securities, and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts
due the Trustee, its agents and any predecessor Trustee under Section 6.07;
SECOND: To the payment of the amounts
then due and unpaid upon the Securities for principal (and premium, if any) and interest or any Additional Amounts payable in respect
of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according
to the aggregate amounts due and payable on such Securities for principal (and premium, if any), interest or any Additional Amounts,
respectively; and
THIRD: The balance, if any, to the Company
or as a court of competent jurisdiction may otherwise direct.
Section 5.07. 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 with respect to the Securities
of such series;
(2)
the Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3)
such Holder or Holders have offered to the Trustee indemnity reasonably satisfactory to the Trustee 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
proceeding; and
(5)
no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders
of a majority in principal amount of the Outstanding Securities of such series;
it being understood and intended
that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture or any Security to affect, disturb or prejudice the rights of any other such Holders or Holders of Securities
of any other series, or to obtain or to seek to obtain priority or preference over any other Holders or to enforce any right under
this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders.
Section 5.08. Unconditional
Right of Holders to Receive Principal, Premium, Interest and Additional Amounts. Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal
of (and premium, if any) and (subject to Sections 3.06 and 3.08) interest on or any Additional Amounts in respect of such Security
on the respective Stated Maturity or Maturities specified in such Security (or, in the case of redemption, on the Redemption Date)
and to institute suit for the enforcement of any such payment, and such right shall not be impaired without the consent of such
Holder.
Section 5.09. Restoration
of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee
or to such Holder, then and in every such case the Company, the Trustee and each such Holder shall, subject to any determination
in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies
of the Trustee and each such Holder shall continue as though no such proceeding had been instituted.
Section 5.10. Rights and
Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities in the last paragraph of Section 3.07, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy, to the extent permitted
by law, shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 5.11. 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 Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article Five or by law to the Trustee or to the Holders may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 5.12. Control By
Holders. Subject to Section 6.03(5), the Holders of a majority in principal amount of the Outstanding Securities of any series
shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee
or exercising any trust or power conferred on the Trustee with respect to the Securities of such series, provided that:
(1)
such direction shall not be in conflict with any rule of law or with this Indenture or with the Securities of any series,
(2)
the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and
(3)
such direction is not unduly prejudicial to the rights of other Holders of Securities of such series.
Section 5.13. Waiver of
Past Defaults. The Holders of not less than a majority in principal amount of the Outstanding Securities of any series may
on behalf of the Holders of all the Securities of such series waive any past default hereunder with respect to such series and
its consequences, except a default:
(1)
in the payment of the principal of (and premium, if any) or interest on or Additional Amounts payable in respect of any
Security of such series, or
(2)
in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent
of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such
default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 5.14. Waiver of
Stay or Extension Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company
(to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that
it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution
of every such power as though no such law had been enacted.
Article
Six
The Trustee
Section 6.01. Certain Duties
and Responsibilities.
(1)
The duties and responsibilities of the Trustee shall be as provided by the Trust Indenture Act. Without limiting the foregoing,
except during the continuance of an Event of Default,
(A)
the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(B)
in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of
this Indenture; 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
to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts
stated therein).
In case an Event of Default
has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent Person would exercise or use under the circumstances in the conduct
of his or her own affairs.
(2)
No provision 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:
(A)
this subsection shall not be construed to limit the effect of subsection (1) of this Section 6.01;
(B)
the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts;
(C)
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 pursuant to Section 5.12, 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 with
respect to the Securities of such series;
(D)
the Trustee, when acting in such capacity, shall not be liable in respect of any payment (as to the correctness of amount,
entitlement to receive or any other matters relating to payment) or notice effected by the Company or any Paying Agent or any records
maintained by any co-Registrar with respect to the Securities; and
(E)
if any party fails to deliver a notice relating to an event the fact of which, pursuant to this Indenture, requires notice
to be sent to the Trustee, the Trustee may conclusively rely on its failure to receive such notice as reason to act as if no such
event occurred.
Notwithstanding the foregoing,
no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if an adequate indemnity
against such risk or liability is not reasonably assured to it. Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to
the provisions of this Section.
Section 6.02. Notice of
Defaults. Within 90 days after the occurrence of an Event of Default hereunder with respect to the Securities of any series,
the Trustee shall transmit to the Holders in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act,
notice of such default hereunder known to a Responsible Officer of the Trustee, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment of the principal of (or premium, if any)
or interest on, or any Additional Amounts with respect to, any Security of such series or in the payment of any sinking fund installment
with respect to Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the Board
of Directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interests of the Holders of such series.
Section 6.03. Certain Rights
of Trustee. Subject to the provisions of Section 6.01:
(1)
the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, or other paper or document
reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(2)
any request or direction of the Company mentioned herein shall be sufficiently evidenced by an Officer’s Certificate,
a Company Request or a Company Order (other than delivery of any Security to the Trustee for authentication and delivery pursuant
to Section 3.04 which shall be sufficiently evidenced as provided therein) and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution or Board Resolutions;
(3)
whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed)
may, in the absence of bad faith on its part, conclusively rely upon an Officer’s Certificate or an Opinion of Counsel;
(4)
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;
(5)
the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders of Securities of any series pursuant to this Indenture, unless such Holders shall have offered
to the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred
by it in compliance with such request or direction;
(6)
the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document,
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, during business
hours and upon reasonable notice, the books, records and premises of the Company, personally or by agent or attorney at the sole
cost to the Company and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation;
(7)
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;
(8)
the Trustee shall not be liable for any action taken, suffered, omitted to be taken by it in good faith and reasonably believed
by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(9)
the Trustee shall not be deemed to have knowledge or notice of any default or Event of Default, unless a Responsible Officer
of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default or Event of Default
is received by a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee, and such notice references the
Securities and this Indenture;
(10)
the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right
to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and to each agent,
custodian and other Person employed to act hereunder;
(11)
in no event shall the Trustee be liable for special, punitive, indirect, consequential or incidental loss or damage of any
kind whatsoever (including lost profits), even if the Trustee has been advised of the likelihood of such loss or damage; and
(12)
any permissive right or authority granted to the Trustee in this Indenture shall not be construed as a mandatory duty.
Section 6.04. Not Responsible
For Recitals or Issuance of Securities. The recitals contained herein and in the Securities, except the Trustee’s certificate
of authentication, shall be taken as the statements of the Company and neither the Trustee nor any Authenticating Agent assumes
responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture
or of the Securities, except that the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate
the Securities and perform its obligations hereunder and that the statements made by it in a Statement of Eligibility and Qualification
on Form T-l supplied to the Company are true and accurate, subject to the qualifications set forth therein. The Trustee or any
Authenticating Agent shall not be accountable for the use or application by the Company of Securities or the proceeds thereof.
Section 6.05. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other Person that may be an agent of the
Trustee or the Company, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to
Sections 310(b) and 311 of the Trust Indenture Act, may otherwise deal with the Company with the same rights it would have if it
were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other Person.
Section 6.06. Money Held
In Trust. Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required
by law and shall be held uninvested. The Trustee shall be under no liability for interest on any money received by it hereunder.
Section 6.07. Compensation
and Reimbursement. The Company agrees:
(1)
to pay to the Trustee from time to time such compensation for all services rendered by it hereunder as shall be mutually
agreed upon by the Company and the Trustee in writing (which compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(2)
except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation
and the reasonable expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may
be attributable to its negligence or bad faith; and
(3)
to indemnify each of the Trustee and any predecessor Trustee and its agents for, and to hold them harmless against, any
loss, liability, claim, damage or expense including taxes (other than taxes based upon, measured by or determined by the income
of the Trustee) incurred without negligence or bad faith on their part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and expenses of enforcing this Indenture against the Company
(including this Section 6.07) and the costs and expenses of defending themselves against any claim or liability in connection with
the exercise or performance of any of their powers or duties hereunder.
The provisions of this Section
6.07 shall survive the termination of this Indenture and the resignation or removal of the Trustee.
To secure the Company’s
payment obligations in this Section 6.07, the Trustee will have a lien prior to the Securities on all money or property held or
collected by the Trustee, except that held in trust to pay principal and interest on particular Securities. Such lien will survive
the satisfaction and discharge of this Indenture and the resignation, removal or replacement of the Trustee.
Section 6.08. Corporate
Trustee Required; Eligibility; Conflicting Interests. There shall at all times be a Trustee hereunder that is a corporation
permitted by Section 310(a)(1) and (5) of the Trust Indenture Act to act as trustee under the Trust Indenture Act and that has
a combined capital and surplus (computed in accordance with Section 310(a)(2) of the Trust Indenture Act) of at least $50,000,000.
If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section 6.08, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article Six. If the Trustee has or shall acquire any conflicting
interest, as defined in Section 310(b) of the Trust Indenture Act, with respect to the Securities of any series, the Trustee shall
take such action as is required pursuant to said Section 310(b).
Section 6.09. Resignation
and Removal; Appointment of Successor.
(a)
No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee pursuant to Section 6.10.
(b)
The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof
to the Company. If the instrument of acceptance by a successor Trustee required by Section 6.10 shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition, at the expense of
the Company, any court of competent jurisdiction for the appointment of a successor Trustee with respect to such series.
(c)
The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority
in principal amount of the Outstanding Securities of such series, delivered to the Trustee and the Company. If an instrument of
acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of such notice of
removal, the Trustee being removed may petition, at the expense of the Company, any court of competent jurisdiction for the appointment
of a successor Trustee with respect to the Securities of such series.
(d)
If at any time:
|
(1) |
the Trustee shall fail to comply with the obligations imposed upon it under Section 310(b) of the
Trust Indenture Act after written request therefor by the Company or by any Holder of a Security who has been a bona fide Holder
of a Security for at least six months, or |
|
(2) |
the Trustee shall cease to be eligible under Section 6.08 and shall fail to resign after written
request therefor by the Company or by any such Holder of a Security, or |
|
(3) |
the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, |
then, in any such case, (a) the Company, by or
pursuant to Board Resolution, may remove the Trustee with respect to all Securities, or (b) subject to Section 315(c) of the Trust
Indenture Act any Holder of a Security who has been a bona fide Holder of a Security of any series for at least six months may,
on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee
with respect to all Securities of such series and the appointment of a successor Trustee or Trustees.
(e)
If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee
for any cause, with respect to the Securities of one or more series, the Company, by or pursuant to Board Resolutions, shall promptly
appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements
of Section 6.10. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor
Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed
shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 6.10, become
the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed
by the Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company
or the Holders of Securities and accepted appointment in the manner required by Section 6.10, any Holder of a Security who has
been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities
of such series.
(f)
The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with respect to the Securities of any series by sending written notice of such
event to the Holders of Securities, if any, of such series as their names and addresses appear in the Security Register. Each notice
shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate
Trust Office.
Notwithstanding replacement
of the Trustee pursuant to this Section 6.09, the Company’s obligations under Section 6.07 will continue for the benefit
of the retiring Trustee.
Section 6.10. Acceptance
of Appointment By Successor.
(a)
In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee
so appointed shall execute, acknowledge and deliver to the Company and the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company and/or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute
and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
(b)
In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall
execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1)
shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee
all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities,
shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood
that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust, that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any
other such Trustee and that no Trustee shall be responsible for any notice given to, or received by, or any act or failure to act
on the part of any other Trustee hereunder, and upon the execution and delivery of such supplemental indenture the resignation
or removal of the retiring Trustee shall become effective to the extent provided therein, such retiring Trustee shall with respect
to the Securities of that or those series to which the appointment of such successor Trustee relates have no further responsibility
for the exercise of rights and powers or for the performance of the duties and obligations vested in the Trustee under this Indenture
other than as hereinafter expressly set forth, and each such successor Trustee without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee,
such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee, to the extent contemplated by such supplemental
indenture, the
property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates.
(c)
Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this
Section, as the case may be.
(d)
No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
Section 6.11. Merger, Conversion,
Consolidation or Succession to Business. Any corporation into which the Trustee may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor
of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article Six, without the
execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have
been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
Section 6.12. Appointment
of Authenticating Agent. The Trustee may appoint an Authenticating Agent or Authenticating Agents, which may be an Affiliate
of the Company, with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate
Securities of that or those series issued upon original issue or exchange, registration of transfer or partial redemption thereof
or pursuant to Section 3.07, 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, except as specified as contemplated by Section 3.01, shall at all times be a corporation that
would be permitted by Section 310(a)(1) and (5) of the Trust Indenture Act to be able to act as a trustee under an indenture qualified
under the Trust Indenture Act, is authorized under applicable law and by its charter to act as such and that has a combined capital
and surplus (computed in accordance with Section 310(a)(2) of the Trust Indenture Act) of not less than $50,000,000. 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. If the Authenticating Agent has or
shall acquire any conflicting interest, as defined in Section 310(b) of the Trust Indenture Act, with respect to the Securities
of any series, the Authenticating Agent shall take action as is required pursuant to said Section 310(b).
Any corporation into which
an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate
agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of
the Trustee or the Authenticating Agent.
An Authenticating Agent may
resign at any time by giving written notice thereof to the Trustee and the Company. The Trustee may at any time terminate the agency
of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable
to the Company and shall mail written notice of such appointment by first-class mail, postage prepaid, to all Holders of registered
Securities, if any, of the series with respect to which such Authenticating Agent will serve, as their names and addresses appear
in the Security Register. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with
all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay each
Authenticating Agent from time to time reasonable compensation for its services under this Section 6.12. The provisions of Sections
3.09, 6.04 and 6.05 shall be applicable to each Authenticating Agent.
If an appointment with respect
to one or more series is made pursuant to this Section 6.12, the Securities of such series may have endorsed thereon, in addition
to or in lieu of the Trustee’s certificate of authentication, an alternate certificate of authentication in substantially
the following form:
This certificate represents
Securities of the series designated herein referred to in the within-mentioned Indenture.
Dated:
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not in its individual capacity but solely as Trustee |
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By: |
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As Authenticating Agent |
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By: |
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Authorized Signatory |
If all of the Securities of
any series may not be originally issued at one time, and if the Trustee does not have an office capable of authenticating Securities
upon original issuance located in a Place of Payment where the Company wishes to have Securities of such series authenticated upon
original issuance, the Trustee, if so requested in writing (which writing need not comply with Section 1.02) by the Company, shall
appoint in accordance with this Section 6.12 an Authenticating Agent having an office in a Place of Payment designated by the Company
with respect to such series of Securities.
Article
Seven
Holders’ Lists and Reports by Trustee and Company
Section 7.01. Company to
Furnish Trustee Names and Addresses of Holders. In accordance with Section 312(a) of the Trust Indenture Act, the Company will
furnish or cause to be furnished to the Trustee:
(1)
semi-annually, not later than 10 days after the Regular Record Date for interest for each series of Securities, a list,
in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Securities of such series as of
such Regular Record Date, or if there is no Regular Record Date for interest for such series of Securities, semi-annually, upon
such dates as are set forth in the Board Resolution or indenture supplemental hereto authorizing such series, and
(2)
at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request,
a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished,
provided, however, that so long as the Trustee
is the Security Registrar no such list shall be required to be furnished.
Section 7.02. Preservation
of Information; Communications to Holders.
(a)
The Trustee shall comply with the obligations imposed upon it pursuant to Section 312 of the Trust Indenture Act.
(b)
Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any Paying Agent nor any Security Registrar shall be held accountable by reason of the disclosure of
any such information as to the names and addresses of the Holders of Securities in accordance with Section 312 of the Trust Indenture
Act, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by reason
of mailing any material pursuant to a request made under Section 312(b) of the Trust Indenture Act.
Section 7.03. Reports By
Trustee.
(a)
Within 60 days after of each year commencing with the year following the first issuance of Securities pursuant to Section
3.01, if required by Section 313(a) of the Trust Indenture Act, the Trustee shall transmit pursuant to Section 313(c) of the Trust
Indenture Act a brief report dated as of such with respect to any of the events specified in said Section 313(a) which 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(b) of the Trust Indenture Act at the times specified therein.
(c)
Reports pursuant to this Section shall be transmitted in the manner and to the Persons required by Sections 313(c) and (d)
of the Trust Indenture Act.
Section 7.04. Reports By
Company. The Company shall file with the Trustee and the Commission, and transmit to Holders, 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 any such information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, shall be filed with the Trustee within 15 days
after the same is so required to be filed with the Commission.
Delivery of such reports, information
and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive
or other notice of any information contained therein or determinable from information contained therein, including the Company’s
compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
Notwithstanding the foregoing,
to the extent any of the information required by this Section 7.04 is filed by the Company with the Commission and publicly available
on the Commission’s EDGAR system (or any successor system thereto), then such information shall be deemed to be filed with
the Trustee; provided, however, that the Trustee shall have no obligation whatsoever to determine if such filing
has occurred.
Article
Eight
Consolidation, Merger and Sales
Section 8.01. Company May
Consolidate Etc., Only on Certain Terms. Nothing contained in this Indenture or in any of the Securities shall prevent any
consolidation or merger of the Company with or into any other Person or Persons (whether or not affiliated with the Company), or
successive consolidations or mergers in which the Company or its successor or successors shall be a party or parties, or shall
prevent any conveyance, transfer or lease of the property of the Company as an entirety or substantially as an entirety, to any
other Person (whether or not affiliated with the Company); provided, however, that:
(1)
in case the Company shall consolidate with or merge into another Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the entity formed by such consolidation or into which the Company is merged
or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Company substantially
as an entirety shall be a corporation organized and existing under the laws of the United States, any state thereof or the District
of Columbia and shall expressly assume, by one or more indentures supplemental hereto, executed and delivered by the successor
Person to the Trustee the due and punctual payment of the principal of (and premium, if any) and interest on or any Additional
Amounts in respect of all the Securities and the performance of every other covenant of this Indenture on the part of the Company
to be performed or observed;
(2)
immediately after giving effect to such transaction no Event of Default, and no event which, after notice or lapse of time
or both, would become an Event of Default, shall have happened and be continuing; and
(3)
the successor Person has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance, transfer or lease and such supplemental
indenture comply with this Article and that
all conditions precedent herein provided for relating to such transaction have been complied with.
Section 8.02. Successor
Corporation Substituted For Company. Upon any consolidation or merger or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety to any Person in accordance with Section 8.01, the successor Person formed
by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as
if such successor Person had been named as the Company herein, and thereafter, the Company shall be relieved of all obligations
and covenants under this Indenture and the Securities.
Article
Nine
Supplemental Indentures
Section 9.01. Supplemental
Indentures Without Consent of Holders. Without the consent of any Holders, the Company, when authorized by Board Resolutions,
and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto for any of the following
purposes:
(1)
to evidence the succession of another Person to the Company, and the assumption by any such successor of the covenants of
the Company herein and in the Securities;
(2)
to add to the covenants of the Company for the benefit of the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely
for the benefit of such series) or to surrender any right or power herein conferred upon the Company;
(3)
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 in uncertificated form;
(4)
to establish the form or terms of Securities of any series as permitted by Sections 2.01 and 3.01;
(5)
to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities
of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.10(b);
(6)
to cure any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture which shall
not be inconsistent with the provisions of this Indenture and which shall not adversely affect the interest of the Holders of Securities
of any series in any material respect;
(7)
to add to, delete from or revise the conditions, limitations and restrictions on the authorized amount, terms or purposes
of issue, authentication and delivery of Securities, as herein set forth;
(8)
to add any additional Events of Default for the benefit of the Holders of all or any series of Securities (and if such additional
Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default
are expressly being included solely for the benefit of such series);
(9)
to modify, eliminate or add to the provisions of this Indenture to such extent as shall be necessary to conform the obligations
of the Company and the Trustee under this Indenture to the obligations imposed on such Persons hereunder pursuant to the Trust
Indenture Act or under any similar federal statute hereafter enacted and rules or regulations of the Commission thereunder;
(10) to secure the Securities;
(11) to conform any provision in this Indenture to the
requirements of the Trust Indenture Act;
(12) to make any change that does not adversely affect the legal
rights under this Indenture of any Holder of Securities issued
under this Indenture;
(13) to make provisions with respect to the exchange or
conversion rights of Holders of Convertible Securities; or
(14) to add to, change or eliminate any of the provisions of this
Indenture in respect to one or more series of Securities;
provided, however, that any such addition, change or elimination (i) shall neither (A) apply to any Security of any
series issued prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (B) modify
the rights of the Holder of any such pre-existing series of any Security with respect to the application of such provision to such
pre-existing series of a Security or (ii) shall become effective only when there is no such pre-existing series of a Security outstanding.
Section 9.02. Supplemental
Indentures With Consent of Holders. With the consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series affected by such supplemental indenture, by Act of said Holders delivered to the Company
and the Trustee, the Company, when authorized by Board Resolutions, and the Trustee may enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture
or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided,
however, that no such supplemental Indenture shall, without the consent of the Holder of each Outstanding Security affected
thereby, shall:
(1)
change the Stated Maturity of the principal of, or any installment of interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any Additional Amounts payable in respect thereof, or any premium payable upon
the redemption thereof, or change the obligation of the Company to pay Additional Amounts pursuant to Section 10.05 (except as
contemplated by Section 8.01(1) and permitted by Section 9.01(1)), or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02, extend
the time of payment of interest on any Security, or change any of the conversion, exchange or redemption provisions of any Security,
or change the Place of Payment, coin or currency in which any Security or any premium or the interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or
(2)
reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions
of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or
(3)
modify any of the provisions of this section, or Sections 5.12 or 5.13, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding
Security affected thereby.
The Company may, but shall
not be obligated to, fix a record date for the purposes of determining the Persons entitled to consent to any indenture supplemental
hereto. If a record date is fixed, the Holders on such record date, or their duly designated proxies, and only such Persons, shall
be entitled to consent to such supplemental indenture, whether or not such Holders remain Holders after such record date;
provided, however, that unless such consent shall have become effective by virtue of the requisite percentage having
been obtained prior to the date which is 90 days after such record date, any such consent previously given shall automatically
and without further action by any Holder be cancelled and of no further effect.
A supplemental indenture which
changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit
of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect
to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities
of any other series.
It shall not be necessary for
any Act of Holders of Securities under this Section 9.02 to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 9.03. Execution
of Supplemental Indentures. As a condition to executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trust created by this Indenture, the Trustee shall be provided with,
and (subject to Section 315 of the Trust Indenture Act) shall be fully protected in relying upon, an Officer’s Certificate
and an Opinion of Counsel stating
that the execution of such
supplemental indenture is authorized or permitted by this Indenture and that it complies with the terms of this Indenture and
that such supplemental indenture is the legal, valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects
the Trustee’s own rights, duties, liabilities or immunities under this Indenture or otherwise.
Section 9.04. Effect of
Supplemental Indentures. Upon the execution of any supplemental indenture under this Article Nine, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of a Security theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
Section 9.05. Conformity
With Trust Indenture Act. Every supplemental indenture executed pursuant to this Article Nine shall conform to the requirements
of the Trust Indenture Act as then in effect.
Section 9.06. Reference
in Securities to Supplemental Indentures. Securities of any series authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article Nine may, and shall if required by the Company, bear a notation in form approved by the Company
as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Company, to any such supplemental indenture may be prepared and executed by the Company
and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.
Article
Ten
Covenants
Section 10.01. Payment of
Principal, Premium, If Any, and Interest. The Company covenants and agrees for the benefit of the Holders of each series of
Securities that it will duly and punctually pay the principal of (and premium, if any), interest on or any Additional Amounts payable
in respect of the Securities of that series in accordance with the terms of such series of Securities and this Indenture. Unless
otherwise provided with respect to a series of Securities, principal, premium, if any, and interest will be considered paid on
the date due if the Paying Agent, if other than the Company, holds as of 10:00 a.m. New York City time on the due date money deposited
by the Company in immediately available funds and designated for and sufficient to pay all principal, premium, if any, and interest
then due.
Section 10.02. Maintenance
of Office or Agency. The Company will maintain in each Place of Payment for any series of Securities an office or agency where
Securities of such series may be presented or surrendered for payment, 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 prompt written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, at the place specified for the purpose pursuant to Section 3.01, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands; provided, however,
no service of legal process on the Company may be made at any office of the Trustee.
The Company may also from time
to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered
for any or all such purposes and may from time to time rescind such designations; provided, however, that no
such designation or rescission shall in any manner relieve the Company of their obligation to maintain an office or agency in each
Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of
any such designation or rescission and of any change in the location of any such other office or agency. Unless otherwise specified
as contemplated by Section 3.01, the Company hereby designates as the Place of Payment for each series the Corporate Trust Office
of the Trustee.
Section 10.03. Money For
Securities Payments to Be Held in Trust. If the Company shall at any time act as its own Paying Agent with respect to any series
of Securities, it will, on or before each due date of the principal of (and premium, if any), or interest on, any of the Securities
of that series, segregate and hold in trust for the benefit of the Person entitled thereto a sum sufficient to pay the principal
(and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein
provided, and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall
have one or more Paying Agents for any series of Securities, it will, on or prior to each due date of the principal of (and premium,
if any), or interest on, any Securities of that series, deposit with any Paying Agent a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal,
premium or interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each
Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this Section 10.03, that such Paying Agent will:
(1)
comply with the provisions of the Trust Indenture Act applicable to it as Paying Agent;
(2)
hold all sums held by it for the payment of the principal of (and premium, if any) or interest on Securities of that series
in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of
as herein provided;
(3)
give the Trustee notice of any default by the Company (or any other obligor upon the Securities of that series) in the making
of any payment of principal (and premium, if any) or interest on the Securities of that series; and
(4)
at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time,
for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held
by the Trustee upon the same terms as those upon which such sums were held by the Company or such Paying Agent; and, upon
such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to
such money.
Except as otherwise provided
hereby or pursuant hereto, any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for
the payment of the principal of (and premium, if any) or interest and Additional Amounts on any Security of any series and remaining
unclaimed for two years after such principal (and premium, if any) or interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at
the expense of the Company cause to be published once, in an English language newspaper of general circulation, published on each
Business Day, in each Place of Payment for such series or to be sent to Holders of Securities for such series, or both, notice
that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date
of such publication or delivery nor shall it be later than two years after such principal (and premium, if any) or interest has
become due and payable, any unclaimed balance of such money then remaining will be repaid to the Company.
Section 10.04. Additional
Amounts. If any Securities of a series provide for the payment of Additional Amounts, the Company agrees to pay to the Holder
of any such Security of any such series Additional Amounts as provided therein. Whenever in this Indenture there is mentioned,
in any context, the payment of the principal of (or premium, if any) or interest on, or in respect of, any Security of any series
or the net proceeds received on the sale or exchange of any Security of any series, such mention shall be deemed to include mention
of the payment of Additional Amounts provided by the terms of such series established hereby or pursuant hereto to the extent that,
in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms and express mention
of the payment of Additional Amounts (if applicable) in any provisions hereof shall not be construed as excluding Additional Amounts
in those provisions hereof where such express mention is not made.
Subject to applicable unclaimed
property laws, except as otherwise provided herein or pursuant hereto, if the Securities of a series provide for the payment of
Additional Amounts, at least 10 days prior to the first Interest Payment Date with respect to such series of Securities (or if
the Securities of that series shall not bear interest prior to Maturity, the first day on which a payment of principal (and premium,
if any, is made)), and at least 10 days prior to each date of payment of principal (and premium, if any) or interest if there has
been any change with respect to the matters set forth in the below-mentioned Officer’s Certificate, the Company will furnish
the Trustee and the principal Paying Agent or Paying Agents, if other than the Trustee, an Officer’s Certificate instructing
the Trustee and such Paying Agent or Paying Agents whether such payment of principal (and premium, if any) of or interest on the
Securities of that series shall be made to Holders of Securities of that series who are United States Aliens without withholding
for or on account of any tax, assessment or other governmental charge described in the Securities of that series. If any such withholding
shall be required, then such Officer’s Certificate shall specify by country the amount, if any, required to be withheld on
such payments to such Holders and the Company agrees to pay to the Trustee or such Paying Agent the Additional Amounts required
by this Section. The Company covenants to indemnify the Trustee and any Paying Agent for, and to hold them harmless against, any
loss, liability or expense reasonably incurred without negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officer’s Certificate furnished pursuant to this Section 10.04.
Section 10.05. Company Statement
As To Compliance; Notice of Certain Defaults.
(a)
The Company will, in addition to the reports required by Section 7.04, deliver to the Trustee, within 120 days after the
end of each fiscal year (which on the date hereof ends on December 31), commencing December 31, 20[ ], a written statement, which
need not comply with Section 1.02, signed by the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating
Officer or an Executive Vice President and by the Chief Financial Officer, the Treasurer or an Assistant Treasurer of the Company,
stating, as to each signer thereof, that:
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(1) |
a review of the activities of the Company during such year and of performance under this Indenture
has been made under his supervision, and |
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(2) |
to the best of his knowledge, based on such review, (a) the Company has fulfilled all of its obligations
under this Indenture throughout such year, or, if there has been a default in the fulfillment of any such obligation, specifying
each such default known to him and the nature and status thereof, and (b) no event has occurred and is continuing which is, or
after notice or lapse of time or both would become, an Event of Default, or, if such an event has occurred and is continuing, specifying
each such event known to him and the nature and status thereof. |
(b)
The Company will deliver to the Trustee as soon as possible, and in any event, within five days after the occurrence thereof,
written notice of any event which after notice or lapse of time or both would become an Event of Default.
Section 10.06. Payment of
Taxes and Other Claims. The Company will pay or discharge or cause to be paid or discharged, before the same shall become delinquent,
(1) all taxes, assessments and governmental charges levied or imposed upon the Company or any Subsidiary or upon the income, profits
or property of the Company or any Subsidiary, and (2) all lawful claims for labor, materials and supplies which, if unpaid, might
by law become a lien upon the property of the Company or any Subsidiary; provided, however, that the Company
shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate proceedings.
Section 10.07. Corporate
Existence. Subject to Article Eight, the Company will do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence, rights (charter and statutory); provided, however, that the Company
shall not be required to preserve any such right or franchise if the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the loss thereof is not disadvantageous in any material
respect to the Holders.
Section 10.08. Waiver of
Certain Covenants. Except as otherwise specified as contemplated by Section 3.01 for Securities of such series, the Company
may omit in any particular instance to comply with any term, provision or condition set forth pursuant to Section 3.01(15), or
in Section 10.06 or 10.07 with respect to the Securities of any series if before the time for such compliance the Holders of at
least a majority in principal
amount of the Outstanding Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend
to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
Article
Eleven
Redemption of Securities
Section 11.01. Applicability
of Article. Redemption of Securities of any series at the option of the Company as permitted or required by the terms of such
Securities shall be made in accordance with the terms of such Securities and (except as otherwise provided herein or pursuant hereto
or as specified as by Section 3.01) this Article Eleven.
Section 11.02. Election
To Redeem; Notice To Trustee. The election of the Company to redeem any Securities shall be evidenced by Board Resolution
or in such other manner specified as contemplated by Section 3.01. In case of any redemption at the election of the Company of
the Securities of any series, with the same issue date, interest rate and Stated Maturity, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee
of such Redemption Date and of the principal amount of Securities of such series to be redeemed.
Section 11.03. Selection
By Trustee of Securities To Be Redeemed. If less than all the Securities of any series with the same issue date, interest rate,
Stated Maturity and other terms are to be redeemed, the particular Securities to be redeemed shall be selected not more than 60
days prior to the Redemption Date by the Trustee from the Outstanding Securities of such series not previously called for redemption,
by lot or such other method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption
of portions of the principal amount of Securities of such series; provided, however, that no such partial redemption
shall reduce the portion of the principal amount of a Security of such series not redeemed to less than the minimum denomination
for a Security of such series established herein pursuant hereto.
If any Convertible Security
selected for partial redemption is converted in part before termination of the conversion right with respect to the portion of
the Security so selected, the converted portion of such Security shall be deemed (so far as may be) to be the portion selected
for redemption. Securities which have been converted during a selection of Securities to be redeemed shall be treated by the Trustee
as Outstanding Securities for the purpose of such selection.
The Trustee shall promptly
notify the Company and the Security Registrar (if other than itself) in writing of the Securities selected for redemption and,
in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any
Securities redeemed or to be redeemed only in part, to the portion of the principal of such Securities which has been or is to
be redeemed.
Section 11.04. Notice of
Redemption. Notice of redemption shall be given in the manner provided in Section 1.06, not less than 30 nor more than 60 days
prior to the Redemption Date, unless a shorter period is specified in the Securities to be redeemed, to the Holders of Securities
to be redeemed (provided notice may be given more than 60 days prior to the Redemption Date in connection with a defeasance or
the satisfaction and discharge of the series). Failure to give notice by sending in the manner herein provided to the Holder of
any Securities designated for redemption as a whole or in part, or any defect in the notice to any such Holder, shall not affect
the validity of the proceedings for the redemption of any other Securities or portion thereof.
Any notice that is sent to
the Holder of any Securities in the manner herein provided shall be conclusively presumed to have been duly given, whether or not
such Holder receives the notice.
All notices of redemption shall
state:
(1)
the Redemption Date,
(2)
the Redemption Price,
(3)
if less than all Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial
redemption, the principal amount) of the particular Securities to be redeemed, or, in the case of global securities, the portion
of such global securities,
(4)
in case any Security is to be redeemed in part only, the notice which relates to such Security shall state that on and after
the Redemption Date, upon surrender of such Security, the Holder of such Security will receive, without charge, a new Security
or Securities of authorized denominations for the principal amount thereof remaining unredeemed or, in the case of a global security,
the books and records of the U.S. Depositary and the Security Registrar or the Trustee will reflect the reduction in the principal
amount of such global security as a result of such partial redemption,
(5)
in the case of Convertible Securities, the Conversion Price then in effect, the date on which the right to convert the principal
amount of the Securities or the portions thereof to be redeemed will terminate and the place or places where such Securities may
be surrendered for conversion,
(6)
that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and
that interest thereon and Additional Amounts, if any, shall cease to accrue on and after said date,
(7)
the place or places where such Securities are to be surrendered for payment of the Redemption Price,
(8)
that the redemption is for a sinking fund, if such is the case, and
(9)
the CUSIP number, if any.
Notice of redemption of Securities
to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request, by the Trustee
in the name and at the expense of the Company; provided, however, that if delivery is to be made by the Trustee the Company
shall have delivered to the Trustee, at least five Business Days (or such shorter period as may be agreed to by the Trustee) before
notice of redemption is required to be sent the redemption notice and a request for the Trustee to make such delivery.
Section 11.05. Deposit of
Redemption Price. On or prior to 10:00 a.m., New York City time on any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in
Section 10.03) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on and any Additional Amounts with respect thereto, all the Securities or portions thereof which
are to be redeemed on that date.
If any Convertible Security
or portion thereof called for redemption is converted in accordance with the terms of such Convertible Security, any money deposited
with the Trustee or so segregated and held in trust for the redemption of such Security or portion thereof shall (subject to any
right of the Holder of the Security on a Regular Record Date preceding such conversion to receive interest) be paid to the Company
upon Company Request or, if then held by the Company, shall be discharged from such trust.
Section 11.06. Securities
Payable on Redemption Date. Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on
the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest.
Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company through
the Paying Agent at the Redemption Price, together with accrued interest (or any Additional Amounts) to the Redemption Date;
provided, however, that installments of interest on Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close
of business on the Regular Record Dates according to their terms and the provisions of Section 3.08.
If any Security called for
redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the Security.
Section 11.07. Securities
Redeemed in Part. Any Security that is not a global security which is to be redeemed only in part shall be surrendered at any
office or agency of the Company maintained for that purpose pursuant to Section 10.02 (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing) and the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new Security or Securities of the same series, containing identical
terms and provisions, of any authorized denomination as requested by such Holder in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so surrendered.
Section 11.08. Conversion
Arrangements on Call for Redemption. Notwithstanding anything to the contrary contained in this Indenture, in connection with
any redemption of Convertible Securities of any series, the Company, by an agreement with one or more investment bankers or other
purchasers, may arrange for such purchasers to purchase all such Convertible Securities called for redemption (the “Called
Securities”) which are either (i) surrendered for redemption or (ii) not duly surrendered for redemption or conversion prior
to the close of business on the Redemption Date, and to convert the same into shares of Common Stock, by the purchasers’
depositing with the Trustee (acting as Paying Agent with respect to the deposit of such amount and as conversion agent with respect
to the conversion of such Called Securities), in trust for the Holders of the Called Securities, on or prior to the Redemption
Date in the manner agreed to by the Company and such purchasers, an amount sufficient to pay the Redemption Price, payable by the
Company on redemption of such Called Securities. In connection with any such arrangement for purchase and conversion, the Trustee
as Paying Agent shall pay on or after the Redemption Date such amounts so deposited by the purchasers in exchange for Called Securities
surrendered for redemption prior to the close of business on the Redemption Date and for all Called Securities surrendered after
such Redemption Date. Notwithstanding anything to the contrary contained in this Article Eleven, the obligation of the Company
to pay the Redemption Price of such Called Securities shall be satisfied and discharged to the extent such amount is so paid by
such purchasers. However, nothing in this Section 11.08 shall in any way relieve the Company of the obligation to pay such Redemption
Price on all Called Securities to the extent such amount is not so paid by said purchasers. For all purposes of this Indenture,
any Called Securities surrendered by the Holders for redemption, and any Called Securities not duly surrendered for redemption
or conversion prior to the close of business on the Redemption Date, shall be deemed acquired by such purchasers from such Holders
and surrendered by such purchasers for conversion and shall in all respects be deemed to have been converted, all as of immediately
prior to the close of business on the Redemption Date, subject to the deposit by the purchasers of the above amount as aforesaid.
Nothing in this Section 11.08 shall in any way limit the right of any Holder of a Security to convert his Security pursuant to
the terms of this Indenture and of such Security at any time prior to the close of business on the Redemption Date applicable thereto.
Article
Twelve
Sinking Funds
Section 12.01. Applicability
of Article. The provisions of this Article Twelve shall be applicable to any sinking fund for the retirement of Securities
of a series, except as otherwise permitted or required by any form of Security of such series issued pursuant to this Indenture.
The minimum amount of any sinking
fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,”
and any payment in excess of such minimum amount provided for by the terms of Securities of such series is herein referred to as
an “optional sinking fund payment.” If provided for by the terms of Securities of any series, the cash amount of any
sinking fund payment may be subject to reduction as provided in Section 12.02. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of Securities of such series.
Section 12.02. Satisfaction
of Sinking Fund Payments With Securities. The Company may, in satisfaction of all or any part of any sinking fund payment with
respect to the Securities of such series to be made pursuant to the terms of such Securities as provided for by the terms of such
series (1) deliver Outstanding Securities of such series (other than any of such Securities previously called for redemption or
any of such Securities in respect of which cash shall have been released to the Company), and (2) apply as a credit Securities
of such series which have been redeemed either at the election of the Company pursuant to the terms of such series of Securities
or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, provided that
such series of Securities have not been previously so credited. Such Securities shall be received and credited for such purpose
by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the
amount of such sinking fund payment shall be reduced accordingly.
Section 12.03. Redemption
of Securities For Sinking Fund. Not less than 90 days prior to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing mandatory sinking
fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment
of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting of Securities of that series pursuant
to Section 12.02, and the optional amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and
will also deliver to the Trustee any Securities to be so credited and not theretofore delivered. If such Officer’s Certificate
shall specify an optional amount to be added in cash to the next ensuing mandatory sinking fund payment, the Company shall thereupon
be obligated to pay the amount therein specified. Not less than 60 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 11.03 and cause
notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section
11.04. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated
in Sections 11.06 and 11.07.
Article
Thirteen
MEETINGS OF HOLDERS
Section 13.01. Purposes
for Which Meetings May Be Called. A meeting of Holders of Securities of such series may be called at any time and from time
to time pursuant to this Article Thirteen to make, give or take any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be made, given or taken by Holders of Securities of such series.
Section 13.02. Call, Notice
and Place of Meetings.
(a)
The Trustee may at any time call a meeting of Holders of Securities of any series for any purpose specified in Section 13.01,
to be held at such time and at such place in the Principle Office of the Trustee as the Trustee shall determine. Notice of every
meeting of Holders of Securities of any series, setting forth the time and the place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be given, in the manner provided in Section 1.06, not less than 21 nor more than 180
days prior to the date fixed for the meeting.
(b)
In case at any time the Company, pursuant to Board Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a meeting of the Holders of Securities of such series
for any purpose specified in Section 13.01, by written request setting forth in reasonable detail the action proposed to be taken
at the meeting, and the Trustee shall not have made the first publication of the notice of such meeting within 21 days after receipt
of such request or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the Holders
of Securities of such series in the amount above specified, as the case may be, may determine the time and the place for such meeting
and may call such meeting for such purposes by giving notice thereof as provided in subsection (a) of this Section.
Section 13.03. Persons Entitled
to Vote at Meetings. To be entitled to vote at any meeting of Holders of Securities of any series, a Person shall be (1) a
Holder of one or more Outstanding Securities of such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such Holder or Holders. The only Persons who shall
be entitled to be present or to speak at any meeting of Holders of Securities of any series shall be the Persons entitled to vote
at such meeting and their counsel, any representatives of the Trustee and its counsel and any representatives of the Company and
its counsel.
Section 13.04. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the Outstanding Securities of a series shall constitute a quorum
for a meeting of Holders of Securities of such series. In the absence of a quorum within 30 minutes after the time appointed for
any such meeting, the meeting shall, if convened at the request of Holders of Securities of such series, be dissolved. In any other
case the meeting may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned
for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given
as provided in section 13.02(a), except that such notice need
be given only once not less than five days prior to the date on which the meeting is scheduled to be reconvened. Notice of the
reconvening of an adjourned meeting shall state expressly the percentage, as provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum.
Except as limited by the proviso
to Section 9.02, any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid
may be adopted only by the affirmative vote of the Holders of a majority in principal amount of the Outstanding Securities of that
series; provided, however, that, except as limited by the proviso to Section 9.02, any resolution with respect
to any request, demand, authorization, direction, notice, consent, waiver or other action which this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid by the affirmative vote of the Holders of such specified percentage in principal amount of the Outstanding
Securities of that series.
Any resolution passed or decision
taken at any meeting of Holders of Securities of any series duly held in accordance with this Section shall be binding on all the
Holders of Securities of such series, whether or not present or represented at the meeting.
Section 13.05. Determination
of Voting Rights; Conduct and Adjournment of Meetings.
(a)
Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities of such series in regard to proof of the holding of Securities of such series
and of the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination
of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting
as it shall deem appropriate. Except as otherwise permitted or required by any such regulations, the holding of Securities shall
be proved in the manner specified in Section 1.04 and the appointment of any proxy shall be proved in the manner specified in Section
1.04 or by having the signature of the Person executing the proxy witnessed or guaranteed by any trust company, bank or banker
authorized by Section 1.04 to certify to the holding of Bearer Securities. Such regulations may provide that written instruments
appointing proxies, regular on their face, may be presumed valid and genuine without the proof specified in Section 1.04 or other
proof.
(b)
The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have
been called by the Company or by Holders of Securities as provided in Section 13.02(b), in which case the Company or the Holders
of Securities of the series calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal
amount of the Outstanding Securities of such series represented at the meeting.
(c)
At any meeting each Holder of a Security of such series or proxy shall be entitled to one vote for each $1,000 principal
amount of Securities of such series held or represented by him; provided, however, that no vote shall be cast
or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to
be not Outstanding. The chairman of the meeting shall have no right to vote, except as a Holder of a Security of such series or
proxy.
(d)
Any meeting of Holders of Securities of any series duly called pursuant to Section 13.02 at which a quorum is present may
be adjourned from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities of such
series represented at the meeting; and the meeting may be held as so adjourned without further notice.
Section 13.06. Counting
Votes and Recording Action of Meetings. The vote upon any resolution submitted to any meeting of Holders of Securities of any
series shall be by written ballots on which shall be subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of the Outstanding Securities of such series held or
represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast
at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting.
A record, at least in triplicate,
of the proceedings of each meeting of Holders of Securities of any series shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more Persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that
said notice was given as provided in Section 13.02 and, if applicable, Section 13.04. Each copy shall be signed and verified by
the affidavits of the permanent chairman and secretary of the meeting and one such copy shall be delivered to the Company and another
to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record
so signed and verified shall be conclusive evidence of the matters therein stated.
Article
Fourteen
CONVERSION
Section 14.01. Conversion
Privilege. Subject to and upon compliance with the provisions of this Article Fourteen and the terms of the Convertible Securities
of the series proposed to be converted, at the option of the Holder, any Convertible Security or any portion of the principal amount
thereof which is $1,000 or an integral multiple thereof, may be converted into shares of Common Stock, as said shares shall be
constituted at the Date of Conversion, at the Conversion Price for such Convertible Securities of such series in effect at the
Date of Conversion.
Section 14.02. Manner of
Exercise of Convertible Privilege. In order to exercise the conversion privilege, the Holder of any Convertible Security to
be converted shall surrender such Convertible Security to the Company at its office or agency, together with the conversion notice
in the form provided on the Securities (or separate written notice) duly executed, and, if so required by the Company, accompanied
by instruments of transfer, in form satisfactory to the Company and to the Trustee, duly executed by the Holder or by his duly
authorized attorney in writing. Any registered Convertible Security so surrendered during the period from the close of business
on the Regular Record Date preceding an Interest Payment Date for such registered Convertible Security to the opening of business
on such Interest Payment Date shall (unless any such registered Convertible Security or the portion thereof being converted shall
have been called for redemption on a Redemption Date during such period, in which event no interest shall be payable with respect
to such registered Convertible Security or portion thereof, as the case may be, following such Redemption Date) also be accompanied
by payment in Clearing House funds or other funds acceptable to the Company of an amount equal to the interest payable on such
Interest Payment Date on the principal amount of such registered Convertible Security then being converted; provided,
however, that no such payment need be made if there shall exist, at the time of conversion, a default in the payment of
interest on the Convertible Securities of such series. Except as provided in the immediately preceding sentence, no adjustment
shall be made for interest accrued on any Convertible Security that shall be converted or for dividends on any shares of Common
Stock that shall be delivered upon the conversion of such Convertible Securities. The funds so delivered to such office or agency
shall be paid to the Company on or after such Interest Payment Date, unless the Company shall default in the payment of the interest
due on such Interest Payment Date, in which event such funds shall be repaid to the Person who delivered the same. As promptly
as practicable after the surrender of any Convertible Security for conversion as aforesaid, the Company shall deliver at said office
or agency to such Holder, or on his written order, a certificate or certificates for the number of full shares deliverable upon
the conversion of such Convertible Security or portion thereof and a check or cash in respect of any fraction of a share of Common
Stock otherwise deliverable upon such conversion, all as provided in this Article Fourteen, together with a Convertible Security
or Convertible Securities of the same series in principal amount equal to the unconverted and unredeemed portion, if any, of the
Convertible Security so converted in accordance with Section 3.06 hereof. Such conversion shall be deemed to have been effected
on the date on which such notice shall have been received at said office or agency and such Convertible Security shall have been
surrendered as aforesaid, and the Person or Persons in whose name or names any certificate or certificates for shares of Common
Stock shall be deliverable upon such conversion shall be deemed to have become on said date the Holder or Holders of record of
the shares represented thereby; provided, however, that any such surrender on any date when the stock transfer books
of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificates are to be delivered
as the record Holder or Holders thereof for all purposes on the next succeeding day on which such stock transfer books are open,
but such conversion shall be at the Conversion Price in effect on the date of such surrender.
Section 14.03. Cash Adjustment
Upon Conversion. The Company shall not be required to deliver fractions of shares of Common Stock upon conversions of Convertible
Securities. If more than one Convertible Security shall be surrendered for conversion at one time by the same Holder, the number
of full shares which shall be deliverable upon conversion thereof shall be computed on the basis of the aggregate principal amount
of the Securities so surrendered. If any fractional interest in a share of Common Stock would be deliverable upon the
conversion of any Convertible
Security or Securities, the Company shall make an adjustment therefor in cash equal to the current market value of such fractional
interest computed to the nearest cent either on the basis of the last reported sale price regular way of the Common Stock on the
Nasdaq Global Market (or, if not listed on the Nasdaq Global Market, then on such other exchange on which the shares of Common
Stock are listed as the Company may designate) on the last Business Day prior to the Date of Conversion or, if there shall not
have been a sale on such last Business Day, on the basis of the average of the bid and asked quotations therefor on such exchange
on such last Business Day or, if the Common Stock shall not then be listed on any exchange, at the highest bid quotation in the
over-the-counter market on such last Business Day as reported by the National Association of Securities Dealers through Nasdaq,
its automated system for reporting quotes, or its successor or such other generally accepted source of publicly reported bid and
asked quotations as the Company may reasonably designate.
Section 14.04. Conversion
Price. The Conversion Price applicable to any series of Convertible Securities shall be the initial Conversion Price set forth
on the Officers’ Certificate or supplemental indenture establishing such series adjusted as provided in this Article Fourteen.
Section 14.05. Adjustment
of Conversion Price. The Conversion Price applicable to any series of Convertible Securities shall be adjusted from time to
time as follows:
(a)
In case the Company shall, at any time or from time to time while the Securities of any series are outstanding, (i) pay
a dividend on its Common Stock in shares of Common Stock, (ii) subdivide its outstanding shares of Common Stock into a larger number
of shares, or (iii) combine its outstanding Common Stock into a smaller number of shares, the Conversion Price for such series
in effect immediately prior thereto shall be adjusted so that the Holder of any Security of such series thereafter surrendered
for conversion shall be entitled to receive the number of shares of Common Stock or other securities of the Company which he would
have owned or have been entitled to receive after the happening of any of the events described above, had such Convertible Security
of such series been converted immediately prior to the happening of such event. An adjustment made pursuant to this subdivision
(a) shall become effective, in the case of a dividend, on the payment date retroactively to immediately after the opening of business
on the day following the record date for the determination of shareholders entitled to receive such dividend, subject to the provisions
of paragraph (g) of this Section 14.05, and shall become effective in the case of a subdivision or combination immediately after
the opening of business on the day following the day when such subdivision or combination, as the case may be, becomes effective.
(b)
In case the Company shall, at any time or from time to time while the Convertible Securities of any series are outstanding,
issue rights or warrants to all holders of its shares of Common Stock entitling them (for a period expiring within 45 days of the
record date mentioned below) to subscribe for or purchase shares of Common Stock at a price per share less than the current market
price per share of Common Stock (as defined in paragraph (d) below) at such record date, the Conversion Price of any series of
Convertible Securities in effect immediately prior to the issuance of such rights or warrants shall be adjusted as follows: the
number of shares of Common Stock into which $1,000 principal amount of Convertible Securities of such series was theretofore convertible
shall be multiplied by a fraction, of which the numerator shall be the number of shares of Common Stock outstanding immediately
prior to such record date plus the number of additional shares of Common Stock offered for subscription or purchase, and of which
the denominator shall be the number of shares of Common Stock outstanding immediately prior to such record date plus the number
of shares which the aggregate offering price of the total number of shares so offered would purchase at such current market price;
and the Conversion Price for such series of Convertible Securities shall be adjusted by dividing $1,000 by the new number of shares
into which $1,000 principal amount of Securities of such series shall be convertible as aforesaid. Such adjustment shall become
effective on the date of such issuance retroactively to immediately after the opening of business on the day following the record
date for the determination of shareholders entitled to receive such rights or warrants, subject to the provisions of paragraph
(g) of this Section 14.05. In determining whether any rights or warrants entitle the holders to subscribe for or purchase shares
of Common Stock at less than such current market price, and in determining the aggregate offering price of such shares, there shall
be taken into account any consideration received by the Company for such rights or warrants, the value of such consideration, if
other than cash, to be determined by the Board of Directors.
(c)
In case the Company shall, at any time from time to time while the Convertible Securities of any series are outstanding,
distribute to all holders of shares of its Common Stock evidences of its indebtedness or securities or assets (excluding cash dividends
or cash distributions payable out of consolidated net earnings or retained earnings) or rights or warrants to subscribe for shares
of Common Stock at a price per share less than the current market price per share of Common Stock, determined in the manner set
forth in paragraph (d) below, but
excluding rights or warrants referred to in paragraph (b) above, the Conversion Price for such
series of Convertible Securities in effect immediately prior to such distribution shall be adjusted by multiplying the number of
shares of Common Stock into which $1,000 principal amount of Convertible Securities of such series of Convertible Securities was
theretofore convertible by a fraction, of which the numerator shall be the current market price per share of Common Stock (as defined
in paragraph (d) below) on the record date for such distribution, and of which the denominator shall be such current market price
per share of the Common Stock, less the then fair market value (as determined by the Board of Directors of the Company, whose determination
shall be conclusive) of the portion of such evidences of indebtedness, securities or assets or of such subscription rights or warrants
so distributed applicable to one share of Common Stock; and the Conversion Price for such series of Convertible Securities
shall be adjusted by dividing $1,000 by the new number of shares into which $1,000 principal amount of Convertible Securities of
such series shall be convertible as aforesaid. Such adjustment shall become effective on the date of such distribution retroactively
to immediately after the opening of business on the day following the record date for the determination of shareholders entitled
to receive such distribution, subject to the provisions of paragraph (g) of this Section 14.05. For the purposes of this paragraph
(c) consolidated net earnings or retained earnings shall be computed by adding thereto all charges against retained earnings on
account of dividends paid in shares of Common Stock in respect of which the Conversion Price has been adjusted, all as determined
by Independent Public Accountants, whose determination shall be conclusive.
(d)
For the purpose of any computation under paragraphs (b) and (c) above, the current market price per share of Common Stock
at any date shall be deemed to be the average of the market values of the shares of Common Stock for the ten consecutive Business
Days immediately preceding the day in question. The market value of the Common Stock for each day shall be determined as provided
in Section 14.03 hereof.
(e)
The Company may make such reductions in the Conversion Price for any series of Convertible Securities, in addition to those
required by paragraphs (a), (b) and (c) of this Section as it considers to be advisable in order that any event treated for Federal
income tax purposes as a dividend of stock or stock rights shall not be taxable to the recipients.
(f)
Except as herein otherwise provided, no adjustment in the Conversion Price for any series of Convertible Securities shall
be made by reason of the issuance, in exchange for cash, property or services, of shares of Common Stock, or any securities convertible
into or exchangeable for shares of Common Stock, or carrying the right to purchase any of the foregoing.
(g)
If the Company shall take a record of the holders of its shares of Common Stock for the purpose of entitling them to receive
any dividend or any subscription or purchase rights or any distribution and shall, thereafter and before the distribution to shareholders
of any such dividend, subscription or purchase rights or distribution, legally abandon its plan to pay or deliver such dividend,
subscription or purchase rights or distribution, then no adjustment of the Conversion Price for any series of Convertible Securities
shall be required by reason of the taking of such record.
(h)
No adjustment in the Conversion Price for any series of Convertible Securities shall be required unless such adjustment
would require an increase or decrease of at least 1% in such price; provided, however, that any adjustments
which by reason of this paragraph (h) are not required to be made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Article Fourteen shall be made to the nearest cent or to the nearest one-hundredth of a
share, as the case may be.
(i)
Whenever the Conversion Price for any series of Convertible Securities is adjusted as herein provided, the Company shall
(i) forthwith place on file at the Principal Office of the Trustee an Officers’ Certificate showing in detail the facts requiring
such adjustment and the Conversion Price after such adjustment and shall exhibit the same from time to time to any Holder of Convertible
Securities of such series desiring an inspection thereof, and (ii) cause a notice stating that such adjustment has been effected
and the adjusted Conversion Price to be mailed to the Holders of registered Convertible Securities of such series at their last
addresses as they shall appear on the Security Register.
(j)
The Company may delete, modify or vary any of the provisions applicable to conversion of the Convertible Securities of any
series, or may add new provisions applicable thereto, all as may be contained in the Board Resolutions and Officers’ Certificate
or supplemental indenture establishing such series.
Section 14.06. Effect of
Reclassifications, Consolidations, Mergers or Sales on Conversion Privilege. In case of any reclassification or change of outstanding
shares of the class of Common Stock issuable
upon conversion of the Convertible Securities (other than a change in par value, or
from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination), or in case
of any merger or consolidation of the Company with one or more other corporations (other than a merger or consolidation in which
the Company is the continuing corporation and which does not result in any reclassification or change of outstanding shares of
Common Stock issuable upon conversion of the Securities), or in case of the merger of the Company into another corporation, or
in case of any sale or conveyance to another corporation of the property of the Company as an entirety or substantially as an entirety,
the Holder of Convertible Securities then outstanding shall have the right to convert such Convertible Security into the kind and
amount of shares of capital stock or other securities and property, including cash, receivable upon such reclassification, change,
consolidation, merger, sale or conveyance by a holder of the number of shares of Common Stock into which such Convertible Security
might have been converted immediately prior to such reclassification, change, consolidation, merger, sale or conveyance. In any
such case the Company, or such successor or purchasing corporation, as the case may be, shall execute with the Trustee one or more
supplemental indentures (which shall conform to the Trust Indenture Act as in force at the date of the execution of such supplemental
indenture) containing provisions to the effect set forth above in this Section 14.06 and providing further for adjustments which
shall be as nearly equivalent as may be practicable to the adjustments provided for in this Article Fourteen; and any such
adjustment which shall be approved by the Board of Directors and set forth in such supplemental indenture or supplemental indentures
shall be conclusive for all purposes of this Section, and the Trustee shall not be under any responsibility to determine the correctness
of any provision contained in such supplemental indenture or supplemental indentures relating to either the kind or amount of shares
of stock or securities or property receivable by Holders of Securities of any series upon the conversion of their Convertible Securities
after any such reclassification, change, consolidation, merger, sale or conveyance.
The above provisions of this
Section 14.06 shall similarly apply to successive reclassifications, changes, consolidations, mergers, sales and conveyances.
Section 14.07. Taxes on
Conversions. The issue of stock certificates on conversions of Convertible Securities shall be made without charge to the converting
Holder of Convertible Securities for any tax in respect of the issue thereof. The Company shall not, however, be required to pay
any tax which may be payable in respect of any transfer involved in the issue and delivery of shares in any name other than that
of the Holder of any registered Convertible Security converted, and the Company shall not be required to issue or deliver any such
stock certificate unless and until the Person or Persons requesting the issue thereof shall have paid to the Company the amount
of such tax or shall have established to the satisfaction of the Company that such tax has been paid.
Section 14.08. Company to
Reserve Common Stock. The Company shall at all times reserve and keep available out of the aggregate of its authorized but
unissued shares or its issued shares held in its treasury, or both, for the purpose of effecting the conversion of the Securities,
such number of its duly authorized shares of Common Stock as shall from time to time be sufficient to effect the conversion of
all outstanding Securities.
If any shares of Common Stock
reserved or to be reserved for the purpose of conversion of Securities hereunder require registration with or approval of any governmental
authority under any Federal or State law before such shares may be validly delivered upon conversion, then the Company covenants
that it will in good faith and as expeditiously as possible endeavor to secure registration or approval, as the case may be.
The Company covenants that
all shares of Common Stock which may be delivered upon conversion of Convertible Securities shall upon delivery be fully paid and
nonassessable by the Company and free from all taxes, liens and charges with respect to the issue or delivery thereof.
Section 14.09. Disclaimer
by Trustee of Responsibility for Certain Matters. Neither the Trustee nor any conversion agent shall at any time be under any
duty or responsibility to any Holder of Convertible Securities of any series to determine whether any facts exist which may require
any adjustment of the Conversion Price for such series, or with respect to the nature or extent of any such adjustment when made,
or with respect to the method employed, or herein or in any supplemental indenture provided to be employed, in making the same,
subject, however, to the provisions of Sections 315(a) through 315(b) of the Trust Indenture Act. Neither the Trustee nor any conversion
agent shall be accountable with respect to the validity or value (or the kind or amount) of any shares of Common Stock, or of any
securities or property which may at any time be issued or delivered upon the conversion of any Convertible Security; and neither
of them makes any representation with respect thereto. Neither the Trustee nor any conversion agent shall be responsible for any
failure of the Company to make any cash payment or to issue, transfer or deliver any shares of Common Stock or stock certificates
or other securities or property upon the surrender of any Security for the purpose of conversion or, subject to Sections
315(a)
through 315(b) of the Trust Indenture Act, to comply with any of the covenants of the Company contained in this Article Fourteen.
No recourse may be taken with
respect to the obligations of the Company or the Trustee against the Trustee in its individual capacity.
Section 14.10. Company to
Give Notice of Certain Events. In the event:
(1)
that the Company shall pay any dividend or make any distribution to the holders of shares of Common Stock otherwise than
in cash charged against consolidated net earnings or retained earnings of the Company and its consolidated net earnings or retained
earnings of the Company and its consolidated subsidiaries or in Common Stock; or
(2)
that the Company shall offer for subscription or purchase, pro rata, to the holders of shares of Common Stock any additional
shares of stock of any class or any securities convertible into or exchangeable for stock of any class; or
(3)
of any reclassification or change in outstanding shares of the class of Common Stock issuable upon the conversion of the
Securities (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result
of a subdivision or combination), or of any merger or consolidation of the Company with, or merger of the Company into, another
corporation (other than a merger or consolidation in which the Company is the continuing corporation and which does not result
in any reclassification or change of outstanding shares of Common Stock issuable upon conversion of the Securities), or of any
sale or conveyance to another corporation of the property of the Company as an entirety or substantially as an entirety;
then, and in any one or more
of such events, the Company will give to the Trustee and each conversion agent written notice thereof at least fifteen days prior
to (i) the record date fixed with respect to any of the events specified in (1) and (2) above, and (ii) the effective date of any
of the events specified in (3) above; and shall mail promptly a copy of such notice to the Holders of registered Convertible
Securities at their last addresses as they shall appear upon the Security Register. Failure to give such notice, or any defect
therein, shall not affect the legality or validity of such dividend, distribution, reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up.
* * * * *
This instrument may be executed
in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together
constitute but one and the same instrument. The words “execution,” “signed,” “signature,” “delivery,”
and words of like import in or relating to this Indenture or any document to be signed in connection with this Indenture shall
be deemed to include electronic signatures, deliveries or 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, physical delivery thereof or the use of a paper-based
recordkeeping system, as the case may be, and the parties hereto consent to conduct the transactions contemplated hereunder by
electronic means. Any facsimile or electronically transmitted copies hereof or signature hereon shall, for all purposes, be deemed
originals.
IN WITNESS WHEREOF, the parties
hereto have caused this Indenture to be duly executed as of the day and year first above written.
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SOUTH PLAINS FINANCIAL, INC. |
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By: |
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Name: |
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Title: |
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, not in its individual capacity but solely
as Trustee |
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By: |
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Name: |
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Title: |
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Exhibit 4.6
SOUTH
PLAINS FINANCIAL, INC.
Issuer
and
Trustee
SUBORDINATED
INDENTURE
Dated
as of , 20
Subordinated
Debt Securities
TABLE
OF CONTENTS
Page:
| Article One Definitions and Other
Provisions of General Application |
1 |
| Section 1.01. Definitions |
1 |
| Section 1.02. Compliance Certificates and
Opinions |
6 |
| Section 1.03. Form of Documents Delivered to
Trustee |
7 |
| Section 1.04. Acts of Holders |
7 |
| Section 1.05. Notices, Etc., to Trustee and
Company |
8 |
| Section 1.06. Notice to Holders; Waiver |
8 |
| Section 1.07. Language of Notices |
9 |
| Section 1.08. Conflict With Trust Indenture Act |
9 |
| Section 1.09. Effect of Headings and Table of
Contents |
9 |
| Section 1.10. Successors and Assigns |
9 |
| Section 1.11. Separability Clause |
9 |
| Section 1.12. Benefits of Indenture |
9 |
| Section 1.13. Governing Law |
9 |
| Section 1.14. Legal Holidays |
9 |
| Section 1.15. Immunity of Shareholders,
Directors, Officers and Agents of the Company |
9 |
| Section 1.16. Waiver of Jury Trial |
9 |
| Section 1.17. When Securities Disregarded |
10 |
| Section 1.18. USA Patriot Act |
10 |
| Section 1.19. Force Majeure |
10 |
| Section 1.20. Calculations |
10 |
| Article Two Securities Forms |
10 |
| Section 2.01. Forms Generally |
10 |
| Section 2.02. Form of Trustee’s Certificate of
Authentication |
10 |
| Section 2.03. Securities in Global Form |
11 |
| Article Three The Securities |
11 |
| Section 3.01. Amount Unlimited; Issuable in
Series |
11 |
| Section 3.02. Denominations |
13 |
| Section 3.03. Securities in Foreign Countries |
13 |
| Section 3.04. Execution, Authentication, Delivery
and Dating |
13 |
| Section 3.05. Temporary Securities |
14 |
| Section 3.06. Registration, Transfer and Exchange |
14 |
| Section 3.07. Mutilated, Destroyed, Lost and
Stolen Securities |
15 |
| Section 3.08. Payment of Interest; Interest
Rights Preserved |
16 |
| Section 3.09. Persons Deemed Owners |
17 |
| Section 3.10. Cancellation |
17 |
| Section 3.11. Computation of Interest |
17 |
| Section 3.12. Cusip Numbers |
17 |
| Article Four Satisfaction and Discharge |
17 |
| Section 4.01. Satisfaction and Discharge of
Indenture |
17 |
| Section 4.02. Application of Trust Money |
18 |
| Section 4.03. Satisfaction, Discharge and
Defeasance of Securities of Any Series |
18 |
| Article Five Remedies |
20 |
| Section 5.01. Events of Default |
20 |
| Section 5.02. Acceleration of Maturity;
Rescission and Annulment |
20 |
| Section 5.03. Collection of Indebtedness and
Suits For Enforcement By Trustee |
21 |
| Section 5.04. Trustee May File Proofs of Claim |
22 |
| Section 5.05. Trustee May Enforce Claims Without
Possession of Securities |
22 |
| Section 5.06. Application of Money or Property
Collected |
22 |
| Section 5.07. Limitation on Suits |
23 |
| Section 5.08. Unconditional Right of Holders to
Receive Principal, Premium, Interest and Additional Amounts |
23 |
| Section 5.09. Restoration of Rights and Remedies |
23 |
| Section 5.10. Rights and Remedies Cumulative |
23 |
| Section 5.11. Delay or Omission Not Waiver |
23 |
| Section 5.12. Control By Holders |
24 |
| Section 5.13. Waiver of Past Defaults |
24 |
| Section 5.14. Waiver of Usury, Stay or Extension
Laws |
24 |
| Article Six The Trustee |
24 |
| Section 6.01. Certain Duties and Responsibilities |
24 |
| Section 6.02. Notice of Defaults |
25 |
| Section 6.03. Certain Rights of Trustee |
25 |
| Section 6.04. Not Responsible For Recitals or
Issuance of Securities |
26 |
| Section 6.05. May Hold Securities |
26 |
| Section 6.06. Money Held In Trust |
26 |
| Section 6.07. Compensation and Reimbursement |
27 |
| Section 6.08. Corporate Trustee Required;
Eligibility; Conflicting Interests |
27 |
| Section 6.09. Resignation and Removal;
Appointment of Successor |
27 |
| Section 6.10. Acceptance of Appointment By
Successor |
28 |
| Section 6.11. Merger, Conversion, Consolidation
or Succession to Business |
29 |
| Section 6.12. Appointment of Authenticating
Agent |
29 |
| Article Seven Holders’ Lists and Reports by
Trustee and Company |
30 |
| Section 7.01. Company to Furnish Trustee Names
and Addresses of Holders |
30 |
| Section 7.02. Preservation of Information;
Communications to Holders |
31 |
| Section 7.03. Reports By Trustee |
31 |
| Section 7.04. Reports By Company |
31 |
| Article Eight Consolidation, Merger and Sales |
31 |
| Section 8.01. Company May Consolidate Etc., Only
on Certain Terms |
31 |
| Section 8.02. Successor Corporation Substituted
For Company |
32 |
| Article Nine Supplemental Indentures |
32 |
| Section 9.01. Supplemental Indentures Without
Consent of Holders |
32 |
| Section 9.02. Supplemental Indentures With
Consent of Holders |
33 |
| Section 9.03. Execution of Supplemental
Indentures |
34 |
| Section 9.04. Effect of Supplemental Indentures |
34 |
| Section 9.05. Conformity With Trust Indenture Act |
34 |
| Section 9.06. Reference in Securities to
Supplemental Indentures |
34 |
| Section 9.07. Subordination Unimpaired |
34 |
| Article Ten Covenants |
34 |
| Section 10.01. Payment of Principal, Premium, If
Any, and Interest |
34 |
| Section 10.02. Maintenance of Office or Agency |
34 |
| Section 10.03. Money For Securities Payments to
Be Held in Trust |
35 |
| Section 10.04. Additional Amounts |
36 |
| Section 10.05. Company Statement As To Compliance |
36 |
| Section 10.06. Payment of Taxes and Other Claims |
37 |
| Section 10.07. Corporate Existence |
37 |
| Section 10.08. Waiver of Certain Covenants |
37 |
| Article Eleven Redemption of Securities |
37 |
| Section 11.01. Applicability of Article |
37 |
| Section 11.02. Election To Redeem; Notice To
Trustee |
37 |
| Section 11.03. Selection By Trustee of Securities
To Be Redeemed |
37 |
SOUTH
PLAINS FINANCIAL, INC.
Certain
Sections of this Indenture relating to Sections 310 through 318, inclusive, of the Trust Indenture Act of 1939, as amended:
| TRUST INDENTURE ACT SECTION |
|
INDENTURE SECTION |
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| §310(a)(1), (2) and (5) |
|
6.08, 6.12 |
| (a)(3) |
|
Not Applicable |
| (a)(4) |
|
Not Applicable |
| (b) |
|
6.05, 6.08, 6.09(d), 6.12 |
| §311 |
|
6.05 |
| §312(a) |
|
7.01, 7.02(a) |
| (b) |
|
7.02(b) |
| (c) |
|
Not Applicable |
| §313(a) |
|
1.01, 7.03(a) |
| (b) |
|
7.03(b) |
| (c) |
|
6.02, 7.03(a), 7.03(c) |
| (d) |
|
7.03(c) |
| §314(a)(1), (2) and (3) |
|
Not Applicable |
| (a)(4) |
|
Not Applicable |
| (b) |
|
Not Applicable |
| (c)(1) |
|
Not Applicable |
| (c)(2) |
|
Not Applicable |
| (c)(3) |
|
Not Applicable |
| (d) |
|
Not Applicable |
| (e) |
|
Not Applicable |
| §315(a) |
|
1.04(a), 9.03, 14.09, 15.01 |
| (b) |
|
14.09, 15.01 |
| (c) |
|
6.09(d) |
| (d) |
|
Not Applicable |
| (e) |
|
Not Applicable |
| §316(a) |
|
Not Applicable |
| (b) |
|
Not Applicable |
| (c) |
|
Not Applicable |
| §317(a) |
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Not Applicable |
| (b) |
|
Not Applicable |
| §318(a) |
|
Not Applicable |
| (c) |
|
1.08 |
| |
|
|
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.
This
SUBORDINATED INDENTURE, dated as of , 20 (the “Indenture”), is made by and SOUTH PLAINS FINANCIAL, INC., a Texas corporation
(the “Company”), having its principal office at 5219 City Bank Parkway, Lubbock, Texas 79407, and , not in its individual
capacity but solely as Trustee (the “Trustee”).
RECITALS
The
Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its
unsecured and subordinated debentures, notes or other evidences of indebtedness (the “Securities”), unlimited as to
principal amount, to bear such rates of interest, to mature at such time or times, to be issued in one or more series and to have
such other provisions as shall be fixed as hereinafter provided.
The
Company has duly authorized the execution and delivery of this Indenture and all things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
This
Indenture is subject to the provisions of the Trust Indenture Act of 1939, as amended, that are required to be part of this Indenture
and shall, to the extent applicable, be governed by such provisions.
NOW,
THEREFORE, THIS INDENTURE WITNESSETH:
For
and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the Securities or of series thereof, as follows:
Article
One
Definitions and Other Provisions of General Application
Section
1.01. Definitions. For all purposes of this Indenture, except as otherwise expressly provided in or pursuant to this Indenture
or unless the context otherwise requires:
(1)
the terms defined in this Article have the meanings assigned to them in this Article, and include the plural as well as the singular;
(2)
all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3)
all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting
principles and, except as otherwise herein expressly provided, the term “generally accepted accounting principles”
with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted
in the United States at the date of such computation;
(4)
the words “herein,” “hereof,” “hereto” 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;
(5)
the pronoun “his” refers to the masculine, feminine and neuter;
(6)
the word “or” is not exclusive;
(7)
all words in the singular include the plural and all words in the plural include the singular; and
(8)
the word “including” means “including without limitations.”
Certain
terms used principally in certain Articles or Sections hereof are defined in those Articles or Sections, as the case may be.
“Act,”
when used with respect to any Holders, has the meaning specified in Section 1.04.
“Additional
Amounts” means any additional amounts which are required hereby or by any Security, under circumstances specified herein
or therein, to be paid by the Company in respect of certain taxes imposed on Holders specified therein and which are owing to
such Holders.
“Affiliate”
of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition, “control,” when used with respect
to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether
through the ownership of voting Securities, by contract or otherwise; and the terms “controlling” and “controlled”
have the meanings correlative to the foregoing.
“Authenticating
Agent” means any Person authorized by the Trustee pursuant to Section 6.12 to act on behalf of the Trustee to authenticate
Securities of one or more series.
“Bank”
means (i) any institution organized under the laws of the United States, any State of the United States, the District of Columbia,
any territory of the United States, Puerto Rico, Guam, American Samoa or the Virgin Islands which (a) accepts deposits that the
depositor has a legal right to withdraw on demand, and (b) engages in the business of making commercial loans and (ii) any trust
company organized under any of the foregoing laws.
“Board
of Directors” means the board of directors of the Company or any committee of that board duly authorized to act for
the Company hereunder.
“Board
Resolution” means a copy of one or more resolutions certified by the Secretary or an Assistant Secretary of the Company
to have been duly adopted by the Board of Directors, or a duly authorized committee thereof, and to be in full force and effect
on the date of such certification, and delivered to the Trustee.
“Business
Day,” except as may otherwise be provided herein or in any Security, means any calendar day, other than a Saturday or
a Sunday, that is neither a Legal Holiday nor a day on which banking institutions in the City of New York, State of New York,
are authorized or required by law, regulation or executive order to close.
“Called
Securities” means any Convertible Security that is called for redemption by the Company.
“Capital
Stock” means, 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”
means the U.S. Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act
of 1934, as amended, or, if at any time after the execution of this Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
“Common
Stock” means all shares now or hereafter authorized of the class of common stock of the Company presently authorized
and stock of any other class into which such shares may hereafter have been changed.
“Company”
means the Person named as the “Company” in the first paragraph of this instrument until a successor corporation shall
have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such
successor corporation, and any other obligor upon the Securities.
“Company
Request” and “Company Order” mean a written request or order, as the case may be, signed in the name
of the Company by the Chairman of the Board of Directors, the Chief Executive Officer, the Chief Operating Officer, the President,
an Executive Vice President, the Chief Financial Officer, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee.
“Conversion
Price” has the meaning specified in Section 3.01.
“Convertible
Security” or “Convertible Securities” means any Security or Securities, as the case may be, which
are by their terms convertible into Common Stock, Preferred Stock (which may be represented by depositary shares), other indebtedness
of the Company, or warrants for Common Stock, Preferred Stock or
indebtedness of the Company, and the terms and conditions upon
which such conversion or exchange shall be effected, including the initial conversion or exchange price or rate, the conversion
or exchange period, the manner in which such conversion or exchange shall be effected, applicable adjustments, if any, and any
other provision in addition to or in lieu of those described herein.
“Corporate
Trust Office” means, the office of the Trustee, at which at any particular time its corporate trust business regarding
this Indenture shall be administered, which office at the date of original execution of this Indenture is located at , Attention
.
“corporation”
includes corporations, associations, companies and business trusts.
“Defaulted
Interest” has the meaning specified in Section 3.08.
“Dollars”
or “$” means a dollar or other equivalent unit in the currency of the United States, except as may otherwise
be provided herein or in any Security.
“Event
of Default” has the meaning specified in Section 5.01.
“Holder,”
in the case of any Security, means the Person in whose name such Security is registered in the Security Register.
“Indenture”
means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof, and with respect to any Security shall include
the terms of such Securities established as contemplated by Section 3.01; provided, however, that, if at any
time more than one Person is acting as Trustee under this instrument, “Indenture” shall mean, with respect to any
one or more series of Securities for which such Person is Trustee, this instrument as originally executed or as it may from time
to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions
hereof and shall include the terms of the or those particular series of Securities for which such Person is Trustee established
as contemplated by Section 3.01, exclusive, however, of any provisions or terms which relate solely to other series of Securities
for which such Person is Trustee, regardless of when such terms or provisions were adopted, and exclusive of any provisions or
terms adopted by means of one or more indentures supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
“Independent
Public Accountants” means accountants or a firm of accountants that are independent public accountants with respect
to the Company within the meaning of the Securities Act of 1933, as amended, and the rules and regulations promulgated by the
Commission thereunder who may be the independent public accountants regularly retained by the Company or who may be other independent
public accountants. Such accountants or firm shall be entitled to rely upon any Opinion of Counsel as to the interpretation of
any legal matters relating to the Indenture or certificates required to be provided hereunder.
“Interest,”
with respect to any Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable
after Maturity and, with respect to any Security which provides for the payment of Additional Amounts pursuant to Section 10.04,
includes such Additional Amounts.
“Interest
Payment Date,” when used with respect to any installment of interest on a Security of a particular series, means the
date specified in such Security or in a Board Resolution or in an indenture supplemental hereto with respect to such series as
the fixed date on which an installment of interest with respect to Securities of that series is due and payable.
“Legal
Holiday,” except as otherwise may be provided herein or in any Securities, with respect to any Place of Payment or other
location, means a Saturday, a Sunday or a day on which banking institutions or trust companies in such Place of Payment or other
location are not authorized or obligated to be open.
“Maturity,”
with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, notice of redemption,
notice of option to elect repayment or otherwise.
“Officer’s
Certificate” means a certificate signed by the Chairman of the Board of Directors, the Chief Executive Officer, the
Chief Operating Officer, the President, an Executive Vice President, the Chief Financial Officer, the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Company, and delivered to the Trustee.
“Opinion
of Counsel,” except as otherwise provided herein or in any Security, means a written Opinion of Counsel from legal counsel
who is reasonably acceptable to the Trustee, who may be an employee of or counsel for the Company or other counsel.
“Original
Issue Discount Security” means a Security issued pursuant to this Indenture which provides for declaration of an amount
less than the principal thereof to be due and payable upon acceleration pursuant to Section 5.02.
“Outstanding,”
with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
|
(i) |
Securities theretofore cancelled by the Trustee or the Security Registrar or delivered to the Trustee or the Security Registrar for
cancellation; |
|
(ii) |
Securities, or portions thereof for whose payment or redemption money or repayment at the option of the Holder, in the necessary amount has
been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities,
provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture; |
|
(iii) |
Securities, except to the extent provided in Section 4.03, with respect to which the Company has effected defeasance and/or covenant
defeasance pursuant to Section 4.03 hereof; and |
|
(iv) |
Securities which have been paid pursuant to Section 3.07 or in exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company; provided, however, that in determining whether the Holders of the requisite principal amount of Outstanding Securities have given any request, demand, authorization, direction, notice,
consent or waiver hereunder or are present at a meeting of Holders of Securities for quorum purposes and for purposes of making the calculations required by Section 313 of the Trust Indenture Act, (i) the principal amount of an Original Issue
Discount Security that may be counted in making such determination or calculation and that shall be deemed to be outstanding for such purposes shall be equal to the amount of the principal thereof that pursuant to the terms of such Original
Issue Discount Security would be declared (or shall have been declared to be) due and payable upon a declaration of acceleration pursuant to Section 5.02 at the time of such determination or calculation, and (ii) the principal amount of any
Security denominated other than in Dollars that may be counted in making such determination or calculation and that shall be deemed outstanding for such purpose shall be equal to the Dollar equivalent, determined by the Company as of the date
such Security is originally issued by the Company, of the principal amount (or, in the case of an Original Issue Discount Security, the Dollar equivalent as of such date of original issuance of the amount determined as provided in clause (i)
above) of such Security, and (iii) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or such other obligor, shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in making any such calculation or relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer of the Trustee actually
knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to
such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or such other obligor. |
“Paying
Agent” means any Person authorized by the Company to deliver payment of the principal of (and premium, if any) or interest
on any Security on behalf of the Company.
“Person”
means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
“Place
of Payment,” with respect to any Security, means the place or places where the principal of (and premium, if any) and
interest on the Securities of that series are payable as specified in or pursuant to Section 3.01(9) or Section 10.02.
“Predecessor
Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered
under Section 3.07 in exchange for or in lieu of a lost, destroyed, mutilated or stolen Security shall be deemed to evidence the
same debt as the lost, destroyed, mutilated or stolen Security.
“Preferred
Stock” means shares of a class or series now or hereafter authorized of the class of preferred stock of the Company
presently authorized and stock of any other class into which such shares may hereafter have been changed.
“Redemption
Date,” with respect to any Security or portion thereof to be redeemed, means the date fixed for such redemption by or
pursuant to this Indenture.
“Redemption
Price,” with respect to any Security or portion thereof to be redeemed, means the price at which it is to be redeemed
as determined by or pursuant to the provisions of this Indenture.
“Regular
Record Date” for the interest payable on any Security on any Interest Payment Date therefor means the date, if any,
specified in such Security as the “Regular Record Date.”
“Responsible
Officer” when used with respect to the Trustee means any officer within the corporate trust department of the Trustee,
including the vice president, any assistant vice president, assistant treasurer, or any other officer of the Trustee who customarily
performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom
any corporate trust matter is referred because of such Person’s knowledge of and familiarity with the particular subject
and who shall have direct responsibility for the administration of this Indenture.
“Security”
or “Securities” means any Security or Securities, as the case may be, authenticated and delivered under this
Indenture; provided, however, that if at any time there is more than one Person acting as Trustee under this
Indenture, “Securities” with respect to the Indenture as to which such Person is Trustee shall have the meaning stated
in the first recital of this Indenture and shall more particularly mean Securities authenticated and delivered under this Indenture,
exclusive, however, of Securities of any series as to which such Person is not Trustee.
“Security
Register” and “Security Registrar” have the respective meanings specified in Section 3.06.
“Senior
Indebtedness,” with respect to any series of Securities issued hereunder, shall have the meaning ascribed to such term
in the Board Resolutions or supplemental indenture establishing such series in accordance with Section 3.01 hereof, and shall
include: (i) the principal and any premium or interest for money borrowed or purchased by the Company; (ii) the principal and
any premium or interest for money borrowed or purchased by another Person and guaranteed by the Company; (iii) any deferred obligation
for the payment of the purchase price of property or assets evidenced by a note or similar instrument or agreement; (iv) an obligation
arising from direct credit substitutes; and (v) any obligation associated with derivative products such as interest and foreign
exchange rate contracts, commodity contracts and similar arrangements; in each case, whether outstanding on the date this Subordinated
Indenture becomes effective, or created, assumed or incurred after that date. Senior Indebtedness excludes any indebtedness that:
(a) expressly states that it is junior to, or ranks equally in right of payment with, the Securities or the Securities of any
series; or (b) is identified as junior to, or equal in right of payment with, the Securities or the Securities of any series in
any Board Resolution or in any supplemental indenture.
“Special
Record Date” for the payment of any Defaulted Interest on any Security means a date fixed by the Company pursuant to
Section 3.08.
“Stated
Maturity,” with respect to any Security or any installment of principal thereof, means the date specified in such Security
as the fixed date on which the principal of such Security or such installment of principal is due and payable.
“Subsidiary”
means any corporation of which at the time of determination the Company and/or one or more Subsidiaries owns or controls directly
or indirectly more than 50% of the shares of Voting Stock.
“Trust
Indenture Act” means the Trust Indenture Act of 1939, as amended, as in force at the date as of which this instrument
was executed, except as provided in Section 9.05.
“Trustee”
means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall
have become such with respect to one or more series of Securities pursuant to the applicable provisions of this Indenture, and
thereafter “Trustee” shall mean each Person who is then a Trustee hereunder; provided, however,
that if at any time there is more than one such Person, “Trustee” shall mean each such Person and as used with respect
to the Securities of any series shall mean the Trustee with respect to the Securities of that series.
“United
States,” except as otherwise provided herein or in any Security, means the United States of America (including the states
and the District of Columbia), its territories and possessions and other areas subject to its jurisdiction.
“United
States Alien,” except as otherwise provided herein or in any Security, means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual, a non-resident alien fiduciary of a foreign estate
or trust, or a foreign partnership one or more of the members of which is, for United States Federal income tax purposes, a foreign
corporation, a non-resident alien individual or a non-resident alien fiduciary of a foreign estate or trust.
“U.S.
Depository” or “Depository” means, with respect to any Security issuable or issued in the form of
one or more global Securities, the Person designated as U.S. Depository by the Company pursuant to Section 3.01, which must be
a clearing agency registered under the Securities Exchange Act of 1934, as amended, and, if so provided pursuant to Section 3.01
with respect to any Security, any successor to such Person. If at any time there is more than one such Person, “U.S. Depository”
or “Depository” shall mean, with respect to any Securities, the qualifying entity which has been appointed with respect
to such Securities.
“Vice
President,” with respect to the Company or the Trustee, means any vice president, whether or not designated by a number
or a word or words added before or after the title “Vice President.”
“Voting
Stock” means stock of a corporation of the class or classes having general voting power under ordinary circumstances
to elect at least a majority of the board of directors, managers or trustees of such corporation provided that, for the purposes
hereof, stock which carries only the right to vote conditionally on the happening of an event shall not be considered voting stock
whether or not such event shall have happened.
Section
1.02. Compliance Certificates and Opinions. Upon any application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the Trustee an Officer’s Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that, in the Opinion of such counsel, all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing of such documents or any of them is specifically
required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion
need be furnished.
Every
certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture and in any applicable
Security (except Section 10.05) shall include:
(1)
a statement that each individual signing such certificate or opinion has read such condition or covenant and the definitions herein
and in any applicable Security relating thereto;
(2)
a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(3)
a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such condition or covenant has been complied with; and
(4)
a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section
1.03. Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered
by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or
give an opinion as to such matters in one or several documents.
Any
certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that
the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous.
Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion
of, or representations by, an officer or officers of the Company, a governmental official or officers or any other Person or Persons,
stating that the information with respect to such factual matters is in the possession of the Company unless such counsel knows,
or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters
are erroneous.
Where
any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions
or other instruments under this Indenture or any Security, they may, but need not, be consolidated and form one instrument.
Section
1.04. Acts of Holders.
(a)
Any request, demand, authorization, direction, notice, consent, waiver or other action provided by or pursuant to this Indenture
to be made, given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor
signed by such Holders in person or by an agent duly appointed in writing or a written record of voting at a meeting of the Holders.
Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record
are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments and any
such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act”
of the Holders signing such instrument or instruments or so voting at any such meeting. Proof of execution of any such instrument
or of a writing appointing any such agent, or of the holding by any Person of a Security, shall be sufficient for any purpose
of this Indenture and (subject to Section 315 of the Trust Indenture Act) conclusive in favor of the Trustee and the Company and
any agent of the Trustee or the Company, if made in the manner provided in this Section 1.04. The record of any meeting of Holders
of Securities shall be proved in the manner provided in Section 13.06.
Without
limiting the generality of this Section 1.04, unless otherwise established in or pursuant to a Board Resolution or set forth or
determined in an Officer’s Certificate, or established in one or more indentures supplemental hereto, pursuant to Section
3.01, a Holder, including a U.S. Depository that is a Holder of a global Security, may make, give or take, by a proxy, or proxies,
duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be made, given or taken by Holders, and a U.S. Depository that is a Holder of a global Security may provide
its proxy or proxies to the beneficial owners of interests in any such global Security through such U.S. Depository’s standing
instructions and customary practices.
Other
than in those situations set forth in Section 1.04(d), the Trustee shall fix a record date, which shall be not more than 30 days
prior to the first solicitation of such Holders, for the purpose of determining the Persons who are beneficial owners of interest
in any permanent global Security held by a U.S. Depository entitled under the procedures of such U.S. Depository to make, give
or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver
or other action provided in this Indenture to be made, given or taken by Holders. If such a record date is fixed, the Holders
on such record date or their duly appointed proxy or proxies, and only such Persons, shall be entitled to make, give or take such
request, demand, authorization, direction, notice, consent, waiver or other action, whether or not such Holders remain Holders
after
such record date. No such request, demand, authorization, direction, notice, consent, waiver or other
action shall be valid
or effective if made, given or taken more than 90 days after such record date.
(b)
The fact and date of the execution by any Person of any such instrument or writing may be proved in any reasonable manner which
the Trustee deems sufficient and in accordance with such reasonable rules as the Trustee may determine; and the Trustee may
in any instance require further proof with respect to any of the matters referred to in this Section 1.04.
(c)
The ownership, principal amount and serial numbers of Securities held by any Person, and the date of the commencement and the
date of termination of holding the same, shall be proved by the Security Register.
(d)
If the Company shall solicit from the Holders of any Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may at its option, by Board Resolutions, fix in advance a record date, which shall be not more
than 30 days prior to the first solicitation of such Holders, for the determination of Holders of Securities entitled to give
such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Company shall have no obligation
to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act
may be given before or after such record date, but only the Holders of Securities of record at the close of business on such record
date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or
other Act, and for that purpose the Outstanding Securities shall be computed as of such record date; provided no such authorization,
agreement or consent of the Holders of Securities shall be deemed effective unless it shall become effective pursuant to the provisions
of this Indenture not later than six months after the record date.
(e)
Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or
in exchange therefor or in lieu thereof in respect of anything done or suffered to be done by the Trustee, any Security Registrar,
any Paying Agent or the Company in reliance thereon, whether or not notation of such action is made upon such Security.
Section
1.05. Notices, Etc., to Trustee and Company. Any request, demand, authorization, direction, notice, consent, waiver or Act
of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(1)
the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with a Responsible Officer of the Trustee at its Corporate Trust Office, or
(2)
the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to the attention of its Treasurer at
the address of its principal office specified in the first paragraph of this Indenture or at any other address previously furnished
in writing to a Responsible Officer of the Trustee by the Company.
Section
1.06. Notice to Holders; Waiver. Except as otherwise expressly provided herein or in any Security, where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently given to Holders if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at his address as it appears in the Security Register, not later than
the latest date, and not earlier than the earliest date, prescribed for the giving of such Notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders. Any notice which is mailed in the manner herein provided
shall be conclusively presumed to have been duly given or provided. In the case by reason of the suspension of regular mail service
or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made
with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
Where
this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance
upon such waiver.
Notwithstanding
any other provision herein, where this Indenture provides for notice of any event to any Holder of an interest in a Global Security
(whether by mail or otherwise), such notice shall be sufficiently given if given to the Depository for such Security (or its designee),
according to the applicable procedures of such Depository, if any, prescribed for the giving of such notice.
Section
1.07. Language of Notices. Any request, demand, authorization, direction, notice, consent, election or waiver required or
permitted under this Indenture shall be in the English language, except that, if the Company so elects, any published notice may
be in an official language of the country of publication.
Section
1.08. Conflict With Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with the duties imposed pursuant
to Section 318(c) of the Trust Indenture Act, such imposed duties shall control.
Section
1.09. Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section
1.10. Successors and Assigns. All covenants and agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
Section
1.11. Separability Clause. In case any provision in this Indenture or any Security shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section
1.12. Benefits of Indenture. Nothing in this Indenture or any Security, express or implied, shall give to any Person, other
than the parties hereto, any Security Registrar, any Paying Agent and their respective successors hereunder and the Holders, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
Section
1.13. Governing Law. This Indenture and the Securities shall be governed by and construed in accordance with the laws of the
State of New York, applicable to agreements made or instruments entered into and, in each case, performed in said state.
Section
1.14. Legal Holidays. In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security, or
the last day on which a Holder has the right to convert these Securities, is not a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or any Security other than a provision in any Security that specifically
states that such provision shall apply in lieu of this Section 1.14) payment of interest or any Additional Amounts or principal
(and premium, if any) or conversion of the Securities need not be made at such Place of Payment on such date, but may be made
on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment
Date or Redemption Date, or at the Stated Maturity, or the last such day of conversion, and no interest shall accrue on the amount
so payable for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
Section
1.15. Immunity of Shareholders, Directors, Officers and Agents of the Company. 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 past, present or future shareholder, employee, officer or director, as such, of the Company or of any predecessor or successor,
either directly or through the Company or any predecessor or successor, under any rule of law, statute or constitutional provision
or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly
waived and released by the acceptance of the Securities by the Holders and as part of the consideration for the issue of the Securities.
Section
1.16. Waiver of Jury Trial. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE
SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section
1.17. When Securities Disregarded. In determining whether the Holders of the required aggregate principal amount of Securities
have concurred in any direction, waiver or consent, Securities owned by the Company or any Affiliate of the Company shall be disregarded
and deemed not to be outstanding, except that, for the purpose of determining whether the Trustee shall be protected in relying
on any such direction, waiver or consent, only Securities which a Responsible Officer of the Trustee actually knows are so owned
shall be so disregarded. Also, subject to the foregoing, only Securities outstanding at the time shall be considered in any such
determination.
Section
1.18. USA Patriot Act. The parties hereto acknowledge that in accordance with Section 326 of 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.
The parties to this Indenture agree that they shall provide the Trustee with such information as they may request in order to
satisfy the requirements of the USA Patriot Act.
Section
1.19. Force Majeure. In no event shall the Trustee be responsible or liable for any failure or delay in the performance of
its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation,
strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes
or acts of God, the effects of any epidemic, pandemic, or disease outbreak, or continuation of any epidemic, pandemic, or disease
outbreak, affecting the United States, including, but not limited to, all measures taken to protect the health, safety and welfare
of the general population of the United States or of any state of the United States or political subdivision thereof, and interruptions,
loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that
the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance
as soon as practicable under the circumstances.
Section
1.20. Calculations. Except as otherwise provided herein, the Company will be responsible for making all calculations called
for under this Indenture or the Securities. The Company will make all such calculations in good faith and, absent manifest error,
its calculations will be final and binding on the Holders. The Company will provide a schedule of its calculations to the Trustee
and the Trustee is entitled to rely conclusively upon the accuracy of such calculations without independent verification. The
Trustee will deliver a copy of such schedule to any Holder upon the written request of such Holder.
Article
Two
Securities Forms
Section
2.01. Forms Generally. Each Security and temporary or permanent global Security issued pursuant to this Indenture shall be
in the form established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, shall have appropriate
insertions, omissions, substitutions and other variations as are required or permitted by this Indenture or any indenture supplemental
hereto and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as
may, consistently herewith, be determined by the officers of the Company executing such Security, as evidenced by their execution
of such Security.
Definitive
Securities shall be printed, lithographed or engraved or produced by any combination of these methods on a steel engraved border
or steel engraved borders or may be produced in any other manner, all as determined by the officers of the Company executing such
Securities, as evidenced by their execution of such Securities.
Section
2.02. Form of Trustee’s Certificate of Authentication. Subject to Section 6.12, the Trustee’s certificate of authentication
shall be in substantially the following form:
This
certificate represents Securities of the series designated therein referred to in the within-mentioned Indenture.
| Dated: , 20 |
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not in its individual capacity but solely as Trustee |
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By: |
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Section
2.03. Securities in Global Form. If Securities of a series are issuable in global form, any such Security may provide that
it shall represent the aggregate amount of Outstanding Securities of such series from time to time endorsed thereon and may also
provide that the aggregate amount of Outstanding Securities represented thereby may from time to time be increased or reduced
to reflect exchanges. Any endorsement of any Security in global form to reflect the amount, or any increase or decrease in the
amount, or changes in the rights of Holders, of Outstanding Securities represented thereby shall be made in such manner and by
such Person or Persons as shall be specified therein or in the Company Order to be delivered pursuant to Section 3.04 or 3.05
with respect thereto. Subject to the provisions of Section 3.04 and, if applicable, Section 3.05, the Trustee shall deliver and
redeliver any Security in permanent global form in the manner and upon instructions given by the Person or Persons specified therein
or in the applicable Company Order. If a Company Order pursuant to Section 3.04 or 3.05 has been, or simultaneously is, delivered,
any instructions by the Company with respect to a Security in global form shall be in writing but need not comply with Section
1.02 and need not be accompanied by an Opinion of Counsel.
The
provisions of the immediately preceding sentence shall apply to any Security represented by a Security in global form if such
Security was never issued and sold by the Company and the Company delivers to the Trustee the Security in global form together
with written instructions (which need not comply with Section 1.02 and need not be accompanied by an Opinion of Counsel) with
regard to the reduction in the principal amount of Securities represented thereby.
Notwithstanding
the provisions of Section 3.08, payment of principal of and any premium and interest on any Security in permanent global form
shall be made to the Person or Persons specified therein.
Notwithstanding
the provisions of Section 3.09, the Company, the Trustee and any agent of the Company and the Trustee shall treat as the Holder
of such principal amount of Outstanding Securities represented by a permanent global Security the Holder of such permanent global
Security in registered form.
Article
Three
The Securities
Section
3.01. Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited. The Securities shall be subordinated in right of payment to Senior Indebtedness as
provided in Article Fifteen.
The
Securities may be issued in one or more series. There shall be established in or pursuant to one or more Board Resolutions, and
set forth in an Officer’s Certificate, or established in one or more indentures supplemental hereto,
(1)
the title of the Securities and the series in which such Securities shall be included;
(2)
any limit upon the aggregate principal amount of the Securities of such title or the Securities of such series which may be authenticated
and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant to Section 3.05, 3.06, 3.07, 9.06 or 11.07 or the terms of
such Securities);
(3)
whether any Securities of the series are to be issuable initially or otherwise in global form and, if so, (i) whether beneficial
owners of interests in any such global Security may exchange such interest for Securities of such series and of like tenor of
any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner
specified in Section 3.06, and (ii) the name of the depository or the U.S. Depository, as the case may be, with respect to any
global Security;
(4)
the date as of which any global Security representing Outstanding Securities of the series shall be dated if other than the date
of original issuance of the first Security of the series to be issued;
(5)
the terms, if any, upon which the Securities of any series may be convertible into or exchanged for Common Stock, Preferred Stock
(which may be represented by depositary shares), other indebtedness of the Company or another obligor, or warrants for Common
Stock, Preferred Stock or indebtedness or other securities of any kind of the Company or any other obligor, and the terms and
conditions upon which such conversion or
exchange shall be effected, including the initial conversion or exchange price or rate
(the “Conversion Price”), the conversion or exchange period, the manner in which such conversion or exchange shall
be effected, applicable adjustments, if any, and any other provision in addition to or in lieu of those described herein;
(6)
the date or dates, or the method, if any, by which such date or dates shall be determined, on which the principal and premium,
if any, of such Securities is payable;
(7)
the rate or rates at which such Securities shall bear interest, if any, or the method, if any, by which such rate or rates are
to be determined, the date or dates, if any, from which such interest shall accrue or the method, if any, by which such date or
dates are to be determined, the Interest Payment Dates, if any, on which such interest shall be payable and the Regular Record
Date, if any, for the interest payable on Securities on any Interest Payment Date, whether and under what circumstances Additional
Amounts on such Securities or any of them shall be payable, and the basis upon which interest shall be calculated if other than
that of a 360-day year of twelve 30-day months;
(8)
the place or places, if any, where the principal of (and premium, if any) and interest (including Additional Amounts), if any,
on such Securities shall be payable, any Securities of the series may be surrendered for registration of transfer, Securities
of the series may be surrendered for exchange or conversion and notices or demands to or upon the Company in respect of the Securities
of the series and this Indenture may be served;
(9)
whether and the terms and conditions upon which the Securities of the series or any of them are to be redeemable at the option
of the Company and, if so, the period or periods within which, the price or prices at which and the other terms and conditions
upon which such Securities may be redeemed, in whole or in part, at the option of the Company;
(10) whether any terms and conditions upon which the Company is
obligated to redeem, or purchase Securities of the series or any of
them pursuant to any sinking fund or at the option of any Holder thereof and, if so, the period or periods within which, the price
or prices at which and the other terms and conditions upon which such Securities shall be redeemed or purchased, in whole or in
part, pursuant to such obligation, and any provisions for the remarketing of the Securities of the series so redeemed or purchased;
(11) the denominations in which Securities of the series, if any, shall
be issuable if other than denominations of $1,000 and any integral
multiple thereof;
(12) if other than the principal amount thereof, the portion of the
principal amount of the Securities of the series of any of them
which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 5.02 or the method by which
such portion is to be determined;
(13) if the principal of (and premium, if any) or interest, if any, on
or any Additional Amounts in respect of the Securities of the
series or any of them are to be payable, at the election of the Company or a Holder thereof, in a coin or currency, composite
currencies or currency unit or units other than that in which the Securities of the series or any of them are stated to be payable,
the period or periods within which, and the terms and conditions upon which, such election may be made;
(14) whether the amount of payments of principal of (and premium, if
any) or interest (including Additional Amounts), if any, on the
Securities of the series may be determined with reference to an index, formula or other method (which index, formula or method
may be based, without limitation, on one or more currencies, currency units, composite currencies, commodities, equity indices
or other indices), and, if so, the terms and conditions upon which and the manner in which such amounts shall be determined and
paid or payable;
(15) any deletions from, modifications of or additions to the Events of
Default or covenants of the Company with respect to the Securities
of the series or any of them, whether or not such Events of Default or covenants are consistent with the Events of Default or
covenants set forth herein;
(16) the applicability, if any, of Section 4.03 to the Securities of the
series and any provisions in modification of, in addition
to or in lieu of any of the provisions of Section 4.03;
(17) if the Securities of the series or any of them are to be issued
upon the exercise of warrants, the time, manner and place for
such Securities to be authenticated and delivered;
(18) if the Securities of the series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, then
the form and terms of such certificates, documents or conditions;
(19) if there is more than one Trustee, the identity of the Trustee
and, if not the Trustee, the identity of each Security Registrar,
Paying Agent and/or Authenticating Agent with respect to the Securities of the series;
(20) whether any of the Securities of a series shall be issued as
Original Issue Discount Securities; and
(21) any other terms of the Securities of the series or any of them.
All
Securities of any one series shall be substantially identical except as to denomination and the rate or rates of interest, if
any, and Stated Maturity, the date from which interest, if any, shall accrue and except as may otherwise be provided by the Company
in or pursuant to one or more Board Resolutions and set forth in such Officer’s Certificate or in any indenture or indentures
supplemental hereto pertaining to such series of Securities. All Securities of any one series need not be issued at the same time
and, unless otherwise so provided by the Company, a series may be reopened for issuances of additional Securities of such series.
If
any of the terms of the Securities of any series were established by action taken by or pursuant to a Board Resolution, the Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the Officer’s Certificate setting forth the
terms of such series.
Section
3.02. Denominations. Unless otherwise established with respect to any Securities pursuant to Section 3.01, the Securities
of each series denominated in Dollars shall be issuable in registered form without coupons in denominations of $1,000 and any
integral multiple thereof. Securities not denominated in Dollars shall be issuable in such denominations as are established with
respect to such Securities pursuant to Section 3.01.
Section
3.03. Securities in Foreign Countries. Whenever this Indenture provides for (i) any action by, or the determination of any
of the rights of, Holders of Securities of any series in which not all of such Securities are denominated in the same currency,
or (ii) any distribution to Holders of Securities, in the absence of any provision to the contrary in the form of Security of
any particular series, any amount in respect of any Security denominated in a currency other than United States dollars shall
be treated for any such action or distribution as that amount of United States dollars that could be obtained for such amount
on such reasonable basis of exchange and as of the record date with respect to registered Securities of such series (if any) for
such action, determination of rights or distribution (or, if there shall be no applicable record date, such other date reasonably
proximate to the date of such action, determination of rights or distribution) as the Company may specify in a written notice
to the Trustee or, in the absence of such written notice, as the Trustee may determine.
Section
3.04. Execution, Authentication, Delivery and Dating. The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its Chief Executive Officer, its President or its Chief Financial Officer and attested by its Secretary or one of
its Assistant Secretaries. The signature of any of these officers on the Securities may be manual, electronic or facsimile.
Securities
bearing the manual, electronic or facsimile signatures of individuals who were at any time the proper officers of the Company
shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication
and delivery of such Securities or did not hold such offices at the date of such Securities.
At
any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series,
executed by the Company, to the Trustee for authentication, and, provided that the Board Resolution or Resolutions and Officer’s
Certificate or supplemental indenture or indentures with respect to such Securities referred to in Section 3.01 and a Company
Order for the authentication and delivery of such Securities, has been delivered to the Trustee, the Trustee in accordance with
the Company Order and subject to the provisions hereof of such Securities shall authenticate and deliver such Securities.
The
Trustee shall not be required to authenticate or to cause an Authenticating Agent to authenticate any Securities if the issue
of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties, liabilities or immunities under
the Securities and this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee or if the Trustee,
being advised by counsel, determines that such action may not lawfully be taken.
Each
Security shall be dated the date of its authentication.
No
Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose, unless there appears
on such Security a certificate of authentication substantially in the form provided for in Section 2.02 or 6.12 executed by or
on behalf of the Trustee by the manual signature of one of its authorized officers, and such certificate upon any Security shall
be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder.
Section
3.05. Temporary Securities. Pending the preparation of definitive Securities of any series, the Company may execute and deliver
to the Trustee and, upon Company Order the Trustee shall authenticate and deliver, in the manner provided in Section 3.04, temporary
Securities of such series which are printed, lithographed, typewritten, photocopied or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they are issued, in registered form without coupons and
with such appropriate insertions, omissions, substitutions and other variations as the officers of the Company executing such
Securities may determine, as conclusively evidenced by their execution of such Securities. In the case of Securities of any series,
such temporary Securities may be in global form.
Except
in the case of temporary Securities in global form, which shall be exchanged in accordance with the provisions thereof, if temporary
Securities of any series are issued, the Company shall cause definitive Securities of such series to be prepared without unreasonable
delay. After the preparation of definitive Securities of any series, the temporary Securities of such series, if any, shall be
exchangeable upon request for definitive Securities of such series containing identical terms and provisions upon surrender of
the temporary Securities of such series at an office or agency of the Company maintained for such purpose pursuant to Section
10.02, without charge to any Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the
Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive
Securities of authorized denominations of the same series containing identical terms and provisions. Unless otherwise specified
as contemplated by Section 3.01 with respect to a temporary global Security, until so exchanged the temporary Securities of any
series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series.
Section
3.06. Registration, Transfer and Exchange. With respect to the Securities of each series, if any, the Company shall cause
to be kept, at an office or agency of the Company maintained pursuant to Section 10.02, a register (each such register being herein
sometimes referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of the Securities of each series and of transfers of the Securities of such series.
In the event that the Trustee shall not be the Security Registrar, it shall have the right to examine the Security Register at
all reasonable times. is hereby initially appointed as Security Registrar for each series of Securities.
Upon
surrender for registration of transfer of any Security of any series at any office or agency of the Company maintained for such
series pursuant to Section 10.02, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of the same series of any authorized denominations, of a like
aggregate principal amount bearing a number not contemporaneously outstanding and containing identical terms and provisions.
At
the option of the Holder, Securities of any series may be exchanged for other Securities of the same series containing identical
terms and provisions, in any authorized denominations, and of a like aggregate principal amount, upon surrender of the Securities
to be exchanged at any such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute,
and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
Notwithstanding
the foregoing, except as otherwise specified as contemplated by Section 3.01, any global Security of any series shall be exchangeable
for Securities of such series only if (i) the Depository is at any time unwilling or unable or ineligible to continue as Depository
and a successor depository is not appointed by the Company within 90 days of the date the Company is so notified in writing, (ii)
the Company executes and delivers to the Trustee a Company Order to the effect that such global Security shall be so exchangeable,
or (iii) an Event of Default has occurred and is continuing with respect to the Securities and the Company or the Depository shall
request such exchange. If the beneficial owners of interests in a global Security are entitled to
exchange such interests for
Securities of such series and of like tenor and principal amount of any authorized form and denomination, as specified as contemplated
by Section 3.01, then without unnecessary delay but in any event not later than the earliest date on which such interests may
be so exchanged, the Company shall deliver to the Trustee definitive Securities of that series in aggregate principal amount equal
to the principal amount of such global Security, executed by the Company. On or after the earliest date on which such interests
may be so exchanged, such global Security shall be surrendered from time to time by the U.S. Depository or such other depository
as shall be specified in the Company Order with respect thereto, and in accordance with instructions given to the Trustee and
the U.S. Depository or such other depository, as the case may be (which instructions shall be in writing but need not comply with
Section 1.02 or be accompanied by an Opinion of Counsel), as shall be specified in the Company Order with respect thereto to the
Trustee, as the Company’s agent for such purpose, to be exchanged, in whole or in part, for definitive Securities of the
same series without charge. The Trustee shall authenticate and make available for delivery, in exchange for each portion of such
surrendered global Security, a like aggregate principal amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such global Security to be exchanged; provided, however, that no such exchanges
may occur during a period beginning at the opening of business 15 days before any selection of Securities of such series to be
redeemed and ending on the relevant Redemption Date. Promptly following any such exchange in part, such global Security shall
be returned by the Trustee to such Depository or the U.S. Depository, as the case may be, or such other Depository or U.S. Depository
referred to above in accordance with the instructions of the Company referred to above, and the Trustee shall endorse such global
Security to reflect the decrease in the principal amount thereof resulting from such exchange. If a Security is issued in exchange
for any portion of a global Security after the close of business at the office or agency where such exchange occurs on (i) any
Regular Record Date and before the opening of business at such office or agency on the relevant Interest Payment Date, or (ii)
any Special Record Date and before the opening of business at such office or agency on the related proposed date for payment of
interest or Defaulted Interest, as the case may be, interest will not be payable on such Interest Payment Date or proposed date
for payment, as the case may be, in respect of such Security, but will be payable on such Interest Payment Date or proposed date
for payment, as the case may be, only to the Person to whom interest in respect of such portion of such global Security is payable
in accordance with the provisions of this Indenture.
All
Securities endorsed thereon issued upon any registration of transfer or exchange of Securities shall be the valid obligations
of the Company evidencing the same debt, and entitling the Holders thereof to the same benefits under this Indenture as the Securities
surrendered upon such registration of transfer or exchange.
Every
Security presented or surrendered for registration of transfer or for exchange, redemption or conversion shall (if so required
by the Company or the Security Registrar for such series of Security presented) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and such Security Registrar duly executed by the Holder thereof or
his attorney duly authorized in writing.
No
service charge shall be made for any registration of transfer or exchange, redemption or conversion of Securities, but the Company
may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges pursuant to Section 3.05, 9.06 or 11.07 not involving
any transfer.
Except
as otherwise specified as contemplated by Section 3.01, the Company shall not be required (i) to issue, register the transfer
of or exchange any Securities of any series during a period beginning at the opening of business 15 days before the day of the
selection for redemption of Securities of such series under Section 11.03 and ending at the close of business on the day of such
selection, or (ii) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except
in the case of any Security to be redeemed in part, the portion thereof not to be redeemed, or (iii) to issue, register the transfer
of or exchange any Security which, in accordance with its terms specified as contemplated by Section 3.01, has been surrendered
for repayment at the option of the Holder, except the portion, if any, of such Security not to be repaid.
Section
3.07. Mutilated, Destroyed, Lost and Stolen Securities. If any mutilated Security is surrendered to the Trustee, subject to
the provisions of this Section 3.07, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor
a new Security of the same series containing identical terms and of like principal amount and bearing a number not contemporaneously
outstanding.
If
there be delivered to the Company and to the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any
Security, and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Company or the Trustee that such
Security has been acquired by a bona fide purchaser,
the Company shall execute and upon its request in a Company Order the Trustee shall authenticate and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Security, a new Security of the same series containing identical terms
and of like principal amount and bearing a number not contemporaneously outstanding.
Notwithstanding
the foregoing provisions of this Section 3.07, in case the outstanding principal balance of 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 3.07, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses
of the Trustee) connected therewith and upon issuance of any new Security in lieu of any destroyed, lost or stolen Securities,
the Company may require that the cost of obtaining a security or indemnity with respect thereto as referenced in this Section
3.07 be borne by the Person requesting such new Security from the Company and Trustee.
Every
new Security of any series issued pursuant to this Section 3.07 in lieu of any destroyed, lost or stolen Security shall constitute
a separate obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities
of that series.
The
provisions of this Section 3.07 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
3.08. Payment of Interest; Interest Rights Preserved. Interest on any Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered as of the close of business on the Regular Record Date for such interest.
Any
interest on any Security of any series which shall be payable, but shall not be punctually paid or duly provided for, on any Interest
Payment Date for such Security (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder; and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in Clause (1) or (2) below:
(1)
The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities affected (or their
respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each such Security and the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of the proposed payment. Money
will be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this Clause provided. The Company
also shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice
of the proposed payment. The Trustee, in the name and at the expense of the Company shall cause notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor to be sent to each Holder of such Securities at his address as
it appears in the Security Register not less than 10 days prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been sent as aforesaid, such Defaulted Interest shall be paid
to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered at the close of business
on such Special Record Date and shall no longer be payable pursuant to the following Clause (2).
(2)
The Company may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to this Clause, such payment shall be deemed practicable
by the Trustee.
For
any Securities of any series that bear interest and are issued in global form, the Company shall make through the Paying Agent,
all payments of principal and interest on the Securities in immediately available funds to the Depository or its nominee, in accordance
with the applicable procedures of the Depository. At the option of the Company, interest on Securities of any series that bear
interest that are not in global form, may be paid through the Paying Agent by mailing a check to the address of the Person entitled
thereto as such address shall appear in the Security Register.
Subject
to the foregoing provisions of this Section 3.08 and Section 3.06, each Security delivered under this Indenture upon registration
of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and
to accrue, which were carried by such other Security.
Section
3.09. Persons Deemed Owners. Prior to due presentment of a Security for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if any), and (subject to Sections 3.06 and 3.08) interest
on or any Additional Amounts with respect to, such Security and for all other purposes whatsoever, whether or not any payment
with respect to such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall
be affected by notice to the contrary.
Section
3.10. Cancellation. All Securities surrendered for payment, redemption, registration of transfer or exchange or for credit
against any sinking fund payment shall, if surrendered to any Person other than the Trustee or the Security Registrar, be delivered
to the Trustee or the Security Registrar, and any such Securities and Securities surrendered directly to the Trustee or the Security
Registrar for any such purpose shall be promptly cancelled by the Trustee or the Security Registrar, as the case may be. The Company
may at any time deliver to the Trustee or the Security Registrar for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner whatsoever, and all Securities so delivered shall be promptly
cancelled by the Trustee or the Security Registrar, as the case may be. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this Section 3.10, except as expressly permitted by this Indenture or as
otherwise specified as contemplated by Section 3.01. All cancelled Securities held by the Trustee shall be retained by the Trustee
and disposed in accordance with its customary practices. The Trustee upon the written request of the Company shall promptly notify
the Company of all cancelled Securities.
Section
3.11. Computation of Interest. Except as otherwise specified as contemplated by Section 3.01 for Securities of any series,
interest on the Securities of each series shall be computed on the basis of 360-day year of twelve 30-day months.
Section
3.12. Cusip Numbers. The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use),
and if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Holders; provided
that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities
or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed
on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the “CUSIP” numbers.
Article
Four
Satisfaction and Discharge
Section
4.01. Satisfaction and Discharge of Indenture. Upon the direction of the Company in an Officer’s Certificate, this Indenture
shall cease to be of further effect with respect to any series of Securities specified in such Officer’s Certificate (except
as to any surviving rights of registration of transfer or exchange of Securities of such series herein expressly provided for
and any right to receive Additional Amounts, as provided in Section 10.04), and the Trustee, on receipt of an Officer’s
Certificate, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this
Indenture as to such series, when:
(1)
either
(A)
all Securities of such series theretofore authenticated and delivered (other than (i) Securities of such series which have been
destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.07, and (ii) Securities of such series
for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in Section 10.03) have been delivered to the Trustee for cancellation;
or
(B) all Securities of such series thereto not theretofore
delivered to the Trustee for cancellation
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(i) |
have become due and payable, or |
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(ii) |
will become due and payable at their Stated Maturity within one year and such Securities are not convertible into other Securities, or |
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(iii) |
if redeemable at the option of the Company, such Securities are not convertible into other Securities and are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the purpose, a sum of money in an amount sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation,
for principal (and premium, if any) and interest, or any Additional Amounts with respect thereto, to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the
case may be; |
(2)
the Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(3)
the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this Indenture as to such series have been complied
with.
In
the event there are two or more Trustees hereunder, then the effectiveness of any such instrument shall be conditioned upon receipt
of such instruments from all Trustees hereunder.
Notwithstanding
the satisfaction and discharge of this Indenture with respect to any series of Securities, the obligations of the Company to the
Trustee under Section 6.07 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section 4.01, the obligations of the Trustee under Section 4.02 and the last paragraph of Section 10.03 shall survive such
satisfaction and discharge.
Section
4.02. Application of Trust Money. Subject to the provisions of the last paragraph of Section 10.03, all money deposited with
the Trustee pursuant to Section 4.01 or this Section 4.02 shall be held in trust and applied by it, in accordance with the provisions
of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting
as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any)
and any interest or any Additional Amounts for whose payment such money has been deposited with the Trustee; but such money
need not be segregated from other funds except to the extent required by law.
All
monies deposited with the Trustee pursuant to Section 4.01 (and held by it or any Paying Agent) for the payment of Securities
subsequently converted shall be returned to the Company upon Company Request.
Section
4.03. Satisfaction, Discharge and Defeasance of Securities of Any Series. If pursuant to Section 3.01 provision is made for
defeasance of Securities of any series pursuant to this Section 4.03, the Company shall be deemed to have paid and discharged
the entire indebtedness on all the Outstanding Securities of such series and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of such indebtedness, when:
(1)
either
(A)
with respect to all Outstanding Securities of such series,
|
(i) |
the Company has deposited or caused to be deposited with the Trustee, as trust funds in trust for such purpose, an amount sufficient to pay
and discharge the entire indebtedness on all Outstanding Securities of such series for principal (and premium, if any), any Additional Amounts, and interest to the Stated Maturity or any Redemption Date as contemplated by the penultimate
paragraph of this Section 4.03, as the case may be; or |
|
(ii) |
with respect to any Series of Securities which are denominated in United States dollars, the Company has deposited or caused to be deposited
with the Trustee, as obligations in trust for such purpose, such amount of direct obligations of, or obligations the timely payment of the principal of and interest on which are fully guaranteed by, the United States of America and which are
not callable at the option of the issuer thereof as will, together with the income to accrue thereon without consideration of any reinvestment thereof, be sufficient to pay and discharge the entire indebtedness on all Outstanding Securities of
such series for principal (and premium, if any), any Additional Amounts, and interest to the stated Maturity or any Redemption Date as contemplated by the penultimate paragraph of this Section 4.03; or |
(B) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by Section
3.01, to be applicable to the Securities of such series; and
(2)
the Company has paid or caused to be paid all other sums payable hereunder with respect to the Outstanding Securities of such
series; and
(3)
the Company has delivered to the Trustee a certificate signed by a nationally recognized firm of Independent Public Accountants
certifying as to the sufficiency of the amounts deposited pursuant to subsections (A) (i) or (ii) of this Section for payment
of the principal (and premium, if any) and interest on the dates such payments are due, an Officer’s Certificate and an
Opinion of Counsel, each such Certificate and opinion stating that no Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to such Securities shall have occurred and all conditions precedent
herein provided for relating to the satisfaction and discharge of the entire indebtedness on all Outstanding Securities of any
such series have been complied with; and
(4)
the Company has delivered to the Trustee
(A)
an opinion of independent counsel, which may be based upon a ruling from the Internal Revenue Service that the Holders of the
Securities of such series will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to Federal income tax on the same amount and in the same manner and at the same times,
as would have been the case if such deposit, defeasance and discharge had not occurred; and
(B)
if the Securities of such series are then listed on a national securities exchange, an Opinion of Counsel that the Securities
of such series will not be delisted as a result of the exercise of this option.
Any
deposits with the Trustee referred to in subsection (1) (A) of this Section 4.03 shall be irrevocable. If any Outstanding Securities
of such series are to be redeemed prior to their Stated Maturity, whether pursuant to any optional redemption or repayment provisions
or in accordance with any mandatory sinking fund requirement, the Company shall make arrangements for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company.
Upon
the satisfaction of the conditions set forth in this Section 4.03 with respect to all the Outstanding Securities of any series,
the terms and conditions of such series, including the terms and conditions with respect thereto set forth in this Indenture,
other than the provisions of Sections 3.06, 3.07, and 10.02, other than the right of Holders of such series to receive, from the
trust fund described in this Section 4.03, payment of the principal (and premium, if any) of, the interest on or any Additional
Amounts with respect to such Securities when such payments are due, other than any right of conversion of such Securities and
the rights, powers, duties and immunities of the Trustee hereunder and the Company’s obligations related thereto, shall
no longer be binding upon, or applicable to, the Company except those responsibilities and obligations which by the terms of the
Indenture survive the termination of the Indenture; provided that the Company shall not be discharged
from any payment obligations
in respect of Securities of such series which are deemed not to be Outstanding under clause (iii) of the definition thereof if
such obligations continue to be valid obligations of the Company under applicable law.
Article
Five
Remedies
Section
5.01. Events of Default. “Event of Default,” wherever used herein with respect to Securities of any series, means
any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary
or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body unless such event is specifically deleted or modified in or pursuant to the supplemental
indenture, Board Resolution or Officer’s Certificate establishing the terms of such series pursuant to this Indenture):
(1)
default in the payment of any installment of interest upon any Security of that series, as and when the same shall become due
and payable, and continuance of such default for a period of 30 days;
(2)
default in the payment of the principal of or premium, if any, on any Security of that series as and when the same shall become
due and payable, whether at Maturity, upon redemption, by declaration, upon required repurchase or otherwise;
(3)
default in the payment of any sinking fund payment with respect to any Security of that series as and when the same shall become
due and payable;
(4)
failure by the Company to deliver the required securities, together with cash in lieu of fractional securities, or other rights
upon an appropriate conversion or exchange election by any Holder of Convertible Securities, and continuance of such default for
a period of 10 days;
(5)
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
in the Securities of that series, in any resolution of the Board of Directors authorizing the issuance of that series of Securities,
in this Indenture with respect to such series or in any supplemental Indenture with respect to such series (other than a covenant
a default in the performance of which is elsewhere in this Section specifically dealt with), continuing for a period of 90 days
after the date on which written notice specifying such failure and requiring the Company to remedy the same shall have been given,
by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25%
in principal amount of the Securities of that series at the time Outstanding;
(6)
a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, and adjudging
it a bankrupt or insolvent or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official)
of the Company or for any substantial part of its property, or ordering the winding-up or liquidation of its affairs, and such
decree or order shall remain unstayed and in effect for a period of 60 consecutive days;
(7)
the Company shall commence a voluntary case or proceeding under any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect, or shall consent to the entry of an order for relief in any 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 for any substantial part of its property, or shall make any general assignment for the benefit of
creditors, or shall fail generally to pay its debts as they become due or shall take any corporate action in furtherance of any
of the foregoing; or
(8)
any other Event of Default provided with respect to Securities of that series.
Section
5.02. Acceleration of Maturity; Rescission and Annulment. Unless the Board Resolution or supplemental indenture establishing
such series provides otherwise, if an Event of Default (other than an Event of Default specified in Section 5.01(6) or 5.01(7))
with respect to Securities of any series at the time outstanding occurs and is continuing, then the Trustee or the Holders of
not less than 25% in principal amount of the Outstanding Securities of that series may declare the principal of all the Securities
of that series, and accrued and unpaid interest, if any, thereon, or such lesser amount as may be provided for in the Securities
of that series, to be
due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by
the Holders),
and upon any such declaration such principal or such lesser amount, together with accrued and unpaid interest, if any, thereon,
shall become immediately due and payable. Unless the Board Resolution or supplemental indenture establishing such series provides
otherwise, if an Event of Default specified in Section 5.01(6) or 5.01(7) with respect to Securities of any series at the time
Outstanding occurs, the principal amount of all the Securities of that series (or, if any Securities of that series are Original
Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof),
together with accrued and unpaid interest, if any, thereon, shall automatically, and without any declaration or other action on
the part of the Trustee or any Holder, become immediately due and payable.
At
any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment
or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of
not less than a majority in principal amount of the Outstanding Securities of that series, by written notice to the Company and
the Trustee, may waive all defaults with respect to all affected series, and may rescind and annul such declaration and its consequences
if:
(1)
the Company has paid or deposited with the Trustee a sum sufficient to pay
(A)
all overdue installments of interest on and any Additional Amounts payable in respect of all Securities of such series that have
become due otherwise than by such declaration of acceleration,
(B)
the principal of (and premium, if any, on) any Securities of such series which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate or rates borne by or provided for in such Securities,
(C)
to the extent that payment of such interest is lawful, interest upon overdue installments of interest or any Additional Amounts,
which have become due otherwise than by such declaration of acceleration, at the rate or rates borne by or provided for in such
Securities, and
(D)
all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel as provided in Section 6.07 hereof; and
(2)
all Events of Default with respect to Securities of such series, other than the non-payment of the principal of Securities of
that series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section
5.13.
No
such rescission shall affect any subsequent default or impair any right consequent thereon.
Section
5.03. Collection of Indebtedness and Suits For Enforcement By Trustee. The Company covenants that if:
(1)
default is made in the payment of any installment of interest on or any Additional Amounts payable in respect of any Security
when such interest or Additional Amounts shall have become due and payable and such default continues for a period of 30 days,
or
(2)
default is made in the payment of the principal of (or premium, if any, on) any Security at its Maturity,
then
the Company will, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of such Securities, the whole
amount then due and payable on such Securities for principal (and premium, if any) and interest or Additional Amounts, if any,
with interest upon the overdue principal (and premium, if any) and, to the extent that payment of such interest shall be legally
enforceable, upon overdue installments of interest or any Additional Amounts, at the rate or rates borne by or provided for in
such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If
the Company fails to pay such amounts, the Trustee, in its own name and as trustee of an express trust, may institute a judicial
proceeding for the collection of the sums so due and unpaid, and may prosecute such proceeding to judgment or final decree, and
may enforce the same against the Company or any other obligor upon
such Securities and collect the moneys adjudged or decreed
to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Securities, wherever
situated.
If
an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed
to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant
or agreement in this Indenture or such Securities or in aid of the exercise of any power granted herein, or to enforce any other
proper remedy.
Section
5.04. Trustee May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor
upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether
the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand on the Company for the payment of any overdue principal, premium or interest)
shall be entitled and empowered, by intervention in such proceeding or otherwise,
(1)
to file and prove a claim for the whole amount or such lesser amount as may be provided for in the Securities of such series,
of principal (and premium, if any) and interest and any Additional Amounts owing and unpaid in respect of the Securities and to
file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents or counsel) and of the
Holders allowed in such judicial proceeding, and
(2)
to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;
and
any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding
is hereby authorized by each Holder 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, 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 6.07.
Nothing
herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder
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 in any such proceeding.
Section
5.05. Trustee May Enforce Claims Without Possession of Securities. All rights of action and claims under this Indenture or
any of the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production
thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery or judgment, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, shall be for the ratable benefit of the Holders of
the Security in respect of which such judgment has been recovered.
Section
5.06. Application of Money or Property Collected. Subject to the provisions of Article Four and Article Fifteen, any money
or property collected by the Trustee pursuant to this Article Five 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 or property on account of principal (and premium, if any),
interest or any Additional Amounts, upon presentation of the Securities, and the notation thereon of the payment if only partially
paid and upon surrender thereof if fully paid:
FIRST:
To the payment of all amounts due the Trustee, its agents and any predecessor Trustee under Section 6.07;
SECOND:
To the payment of the amounts then due and unpaid upon the Securities for principal (and premium, if any) and interest or any
Additional Amounts payable in respect of which or for the benefit of which such money has been collected, ratably, without preference
or priority of any kind, according
to the aggregate amounts due and payable on such Securities for principal (and premium, if
any), interest or any Additional Amounts, respectively; and
THIRD:
The balance, if any, to the Company or as a court of competent jurisdiction may otherwise direct.
Section
5.07. 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 with respect to the Securities
of such series;
(2)
the Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3)
such Holder or Holders have offered to the Trustee indemnity reasonably satisfactory to the Trustee 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 proceeding;
and
(5)
no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of
a majority in principal amount of the Outstanding Securities of such series;
it
being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or
by availing of, any provision of this Indenture or any Security to affect, disturb or prejudice the rights of any other such Holders
or Holders of Securities of any other series, or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all
such Holders.
Section
5.08. Unconditional Right of Holders to Receive Principal, Premium, Interest and Additional Amounts. Notwithstanding any other
provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any) and (subject to Sections 3.06 and 3.08) interest on or any Additional Amounts
in respect of such Security on the respective Stated Maturity or Maturities specified in such Security (or, in the case of redemption,
on the Redemption Date) and to institute suit for the enforcement of any such payment, and such right shall not be impaired without
the consent of such Holder.
Section
5.09. Restoration of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right
or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely
to the Trustee or to such Holder, then and in every such case the Company, the Trustee and each such Holder shall, subject to
any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of the Trustee and each such Holder shall continue as though no such proceeding had been instituted.
Section
5.10. Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.07, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy, to the
extent permitted by law, shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section
5.11. 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 Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this Article Five or by law to the Trustee or to the Holders
may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
Section
5.12. Control By Holders. Subject to Section 6.03(5), the Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available
to the Trustee or exercising any trust or power conferred on the Trustee with respect to the Securities of such series, provided
that:
(1)
such direction shall not be in conflict with any rule of law or with this Indenture or with the Securities of any series,
(2)
the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and
(3)
such direction is not unduly prejudicial to the rights of other Holders of Securities of such series.
Section
5.13. Waiver of Past Defaults. The Holders of not less than a majority in principal amount of the Outstanding Securities of
any series may on behalf of the Holders of all the Securities of such series waive any past default hereunder with respect to
such series and its consequences, except a default:
(1)
in the payment of the principal of (and premium, if any) or interest on or Additional Amounts payable in respect of any Security
of such series, or
(2)
in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon
any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
Section
5.14. Waiver of Stay or Extension Laws. The Company covenants (to the extent that it may lawfully do so) that it will not
at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture;
and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been enacted.
Article
Six
The Trustee
Section
6.01. Certain Duties and Responsibilities.
(1)
The duties and responsibilities of the Trustee shall be as provided by the Trust Indenture Act. Without limiting the foregoing,
except during the continuance of an Event of Default,
(A)
the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the Trustee; and
(B)
in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of
this Indenture; 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
to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other
facts stated therein).
In
case an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their exercise, as a prudent Person would exercise or use under
the circumstances in the conduct of his or her own affairs.
(2)
No provision 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:
(A)
this subsection shall not be construed to limit the effect of subsection (1) of this Section 6.01;
(B)
the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(C)
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 pursuant to Section 5.12, 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 with respect
to the Securities of such series;
(D)
the Trustee, when acting in such capacity, shall not be liable in respect of any payment (as to the correctness of amount, entitlement
to receive or any other matters relating to payment) or notice effected by the Company or any Paying Agent or any records maintained
by any co-Registrar with respect to the Securities; and
(E)
if any party fails to deliver a notice relating to an event the fact of which, pursuant to this Indenture, requires notice to
be sent to the Trustee, the Trustee may conclusively rely on its failure to receive such notice as reason to act as if no such
event occurred.
Notwithstanding
the foregoing, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if an
adequate indemnity against such risk or liability is not reasonably assured to it. Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section.
Section
6.02. Notice of Defaults. Within 90 days after the occurrence of an Event of Default hereunder with respect to the Securities
of any series, the Trustee shall transmit to the Holders in the manner and to the extent provided in Section 313(c) of the Trust
Indenture Act, notice of such default hereunder known to a Responsible Officer of the Trustee, unless such default shall have
been cured or waived; provided, however, that, except in the case of a default in the payment of the principal
of (or premium, if any) or interest on, or any Additional Amounts with respect to, any Security of such series or in the payment
of any sinking fund installment with respect to Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the Board of Directors, the executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such notice is in the interests of the Holders of such
series.
Section
6.03. Certain Rights of Trustee. Subject to the provisions of Section 6.01:
(1)
the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, or other paper or document
reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(2)
any request or direction of the Company mentioned herein shall be sufficiently evidenced by an Officer’s Certificate, a
Company Request or a Company Order (other than delivery of any Security to the Trustee for authentication and delivery pursuant
to Section 3.04 which shall be sufficiently evidenced as provided therein) and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution or Board Resolutions;
(3)
whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, conclusively rely upon an Officer’s Certificate or an Opinion of Counsel;
(4)
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;
(5)
the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders of Securities of any series pursuant to this Indenture, unless such Holders shall have offered
to the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred
by it in compliance with such request or direction;
(6)
the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document, 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, during business hours and upon
reasonable notice, the books, records and premises of the Company, personally or by agent or attorney at the sole cost to the
Company and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation;
(7)
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;
(8)
the Trustee shall not be liable for any action taken, suffered, omitted to be taken by it in good faith and reasonably believed
by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(9)
the Trustee shall not be deemed to have knowledge or notice of any default or Event of Default, unless a Responsible Officer of
the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default or Event of Default
is received by a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee, and such notice references the
Securities and this Indenture;
(10)
the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to
be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and to each agent,
custodian and other Person employed to act hereunder;
(11)
in no event shall the Trustee be liable for special, punitive, indirect, consequential or incidental loss or damage of any kind
whatsoever (including lost profits), even if the Trustee has been advised of the likelihood of such loss or damage; and
(12)
any permissive right or authority granted to the Trustee in this Indenture shall not be construed as a mandatory duty.
Section
6.04. Not Responsible For Recitals or Issuance of Securities. The recitals contained herein and in the Securities, except
the Trustee’s certificate of authentication, shall be taken as the statements of the Company and neither the Trustee nor
any Authenticating Agent assumes responsibility for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities, except that the Trustee represents that it is duly authorized to execute
and deliver this Indenture, authenticate the Securities and perform its obligations hereunder and that the statements made by
it in a Statement of Eligibility and Qualification on Form T-l supplied to the Company are true and accurate, subject to the qualifications
set forth therein. The Trustee or any Authenticating Agent shall not be accountable for the use or application by the Company
of Securities or the proceeds thereof.
Section
6.05. May Hold Securities. The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other Person
that may be an agent of the Trustee or the Company, in its individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 310(b) and 311 of the Trust Indenture Act, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other Person.
Section
6.06. Money Held In Trust. Money held by the Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law and shall be held uninvested. The Trustee shall be under no liability for interest on any money received
by it hereunder.
Section
6.07. Compensation and Reimbursement. The Company agrees:
(1)
to pay to the Trustee from time to time such compensation for all services rendered by it hereunder as shall be mutually agreed
upon by the Company and the Trustee in writing (which compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(2)
except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation
and the reasonable expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as
may be attributable to its negligence or bad faith; and
(3)
to indemnify each of the Trustee and any predecessor Trustee and its agents for, and to hold them harmless against, any loss,
liability, claim, damage or expense including taxes (other than taxes based upon, measured by or determined by the income of the
Trustee) incurred without negligence or bad faith on their part, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses of enforcing this Indenture against the Company (including
this Section 6.07) and the costs and expenses of defending themselves against any claim or liability in connection with the exercise
or performance of any of their powers or duties hereunder.
The
provisions of this Section 6.07 shall survive the termination of this Indenture and the resignation or removal of the Trustee.
To
secure the Company’s payment obligations in this Section 6.07, the Trustee will have a lien prior to the Securities on all
money or property held or collected by the Trustee, except that held in trust to pay principal and interest on particular Securities.
Such lien will survive the satisfaction and discharge of this Indenture and the resignation, removal or replacement of the Trustee.
Section
6.08. Corporate Trustee Required; Eligibility; Conflicting Interests. There shall at all times be a Trustee hereunder
that is a corporation permitted by Section 310(a)(1) and (5) of the Trust Indenture Act to act as trustee under the Trust Indenture
Act and that has a combined capital and surplus (computed in accordance with Section 310(a)(2) of the Trust Indenture Act) of
at least $50,000,000. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section
6.08, it shall resign immediately in the manner and with the effect hereinafter specified in this Article Six. If the Trustee
has or shall acquire any conflicting interest, as defined in Section 310(b) of the Trust Indenture Act, with respect to the Securities
of any series, the Trustee shall take such action as is required pursuant to said Section 310(b).
Section
6.09. Resignation and Removal; Appointment of Successor.
(a)
No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee pursuant to Section 6.10.
(b)
The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by Section 6.10 shall not have been delivered to the
Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition, at the expense of the
Company, any court of competent jurisdiction for the appointment of a successor Trustee with respect to such series.
(c)
The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee and the Company. If an instrument of acceptance
by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of such notice of removal,
the Trustee being removed may petition, at the expense of the Company, any court of competent jurisdiction for the appointment
of a successor Trustee with respect to the Securities of such series.
(d)
If at any time:
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(1) |
the
Trustee shall fail to comply with the obligations imposed upon it under Section 310(b) of the Trust Indenture Act after written
request therefor by the Company or by |
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any Holder of a Security who has been a bona fide Holder of a Security for at least six months, or |
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(2) |
the Trustee shall cease to be eligible under Section 6.08 and shall fail to resign after written request therefor by the Company or by any
such Holder of a Security, or |
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(3) |
the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, |
then,
in any such case, (a) the Company, by or pursuant to Board Resolution, may remove the Trustee with respect to all Securities,
or (b) subject to Section 315(c) of the Trust Indenture Act any Holder of a Security who has been a bona fide Holder of a Security
of any series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities of such series and the appointment of a successor Trustee
or Trustees.
(e)
If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or more series, the Company, by or pursuant to Board Resolutions, shall promptly
appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements
of Section 6.10. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor
Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed
shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 6.10, become
the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed
by the Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company
or the Holders of Securities and accepted appointment in the manner required by Section 6.10, any Holder of a Security who has
been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities
of such series.
(f)
The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series
and each appointment of a successor Trustee with respect to the Securities of any series by sending written notice of such event
to the Holders of Securities, if any, of such series as their names and addresses appear in the Security Register. Each notice
shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate
Trust Office.
Notwithstanding
replacement of the Trustee pursuant to this Section 6.09, the Company’s obligations under Section 6.07 will continue for
the benefit of the retiring Trustee.
Section
6.10. Acceptance of Appointment By Successor.
(a)
In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and the retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the
request of the Company and/or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver
an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
(b)
In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series,
the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute
and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each successor Trustee
all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities,
shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust,
that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered
by any other such Trustee and that no Trustee shall be responsible for any notice given to, or received by, or any act or failure
to act on the part of any other Trustee hereunder, and upon the execution and delivery of such supplemental indenture the resignation
or removal of the retiring Trustee shall become effective to the extent provided therein, such retiring Trustee shall with respect
to the Securities of that or those series to which the appointment of such successor Trustee relates have no further responsibility
for the exercise of rights and powers or for the performance of the duties and obligations vested in the Trustee under this Indenture
other than as hereinafter expressly set forth, and each such successor Trustee without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee, to the extent contemplated by
such supplemental indenture, the property and money held by such retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such successor Trustee relates.
(c)
Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting
in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section,
as the case may be.
(d)
No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified
and eligible under this Article.
Section
6.11. Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article Six, without the execution or filing of any paper or any further act on the part of any of the parties hereto.
In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated
with the same effect as if such successor Trustee had itself authenticated such Securities.
Section
6.12. Appointment of Authenticating Agent. The Trustee may appoint an Authenticating Agent or Authenticating Agents, which
may be an Affiliate of the Company, with respect to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of that or those series issued upon original issue or exchange, registration of transfer
or partial redemption thereof or pursuant to Section 3.07, 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, except as specified as contemplated by Section 3.01, shall at all
times be a corporation that would be permitted by Section 310(a)(1) and (5) of the Trust Indenture Act to be able to act as a
trustee under an indenture qualified under the Trust Indenture Act, is authorized under applicable law and by its charter to act
as such and that has a combined capital and surplus (computed in accordance with Section 310(a)(2) of the Trust Indenture Act)
of not less than $50,000,000. 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.
If the Authenticating Agent has or shall acquire any conflicting interest, as defined in Section 310(b) of the Trust
Indenture
Act, with respect to the Securities of any series, the Authenticating Agent shall take action as is required pursuant to said
Section 310(b).
Any
corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation
succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating
Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper
or any further act on the part of the Trustee or the Authenticating Agent.
An
Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and the
Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of such appointment by first-class mail, postage
prepaid, to all Holders of registered Securities, if any, of the series with respect to which such Authenticating Agent will serve,
as their names and addresses appear in the Security Register. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally
named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
The
Company agrees to pay each Authenticating Agent from time to time reasonable compensation for its services under this Section
6.12. The provisions of Sections 3.09, 6.04 and 6.05 shall be applicable to each Authenticating Agent.
If
an appointment with respect to one or more series is made pursuant to this Section 6.12, the Securities of such series may have
endorsed thereon, in addition to or in lieu of the Trustee’s certificate of authentication, an alternate certificate of
authentication in substantially the following form:
This
certificate represents Securities of the series designated herein referred to in the within-mentioned Indenture.
Dated:
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not in its individual capacity but solely as Trustee |
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By: |
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As Authenticating Agent |
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By: |
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Authorized Signatory |
If
all of the Securities of any series may not be originally issued at one time, and if the Trustee does not have an office capable
of authenticating Securities upon original issuance located in a Place of Payment where the Company wishes to have Securities
of such series authenticated upon original issuance, the Trustee, if so requested in writing (which writing need not comply with
Section 1.02) by the Company, shall appoint in accordance with this Section 6.12 an Authenticating Agent having an office in a
Place of Payment designated by the Company with respect to such series of Securities.
Article
Seven
Holders’ Lists and Reports by Trustee and Company
Section
7.01. Company to Furnish Trustee Names and Addresses of Holders. In accordance with Section 312(a) of the Trust Indenture
Act, the Company will furnish or cause to be furnished to the Trustee:
(1)
semi-annually, not later than 10 days after the Regular Record Date for interest for each series of Securities, a list, in such
form as the Trustee may reasonably require, of the names and addresses of the Holders of Securities of such series as of such
Regular Record Date, or if there is no Regular Record Date for interest for such series of Securities, semi-annually, upon such
dates as are set forth in the Board Resolution or indenture supplemental hereto authorizing such series, and
(2)
at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request,
a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished,
provided,
however, that so long as the Trustee is the Security Registrar no such list shall be required to be furnished.
Section
7.02. Preservation of Information; Communications to Holders.
(a)
The Trustee shall comply with the obligations imposed upon it pursuant to Section 312 of the Trust Indenture Act.
(b)
Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company
nor the Trustee nor any Paying Agent nor any Security Registrar shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders of Securities in accordance with Section 312 of the Trust Indenture Act,
regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason
of mailing any material pursuant to a request made under Section 312(b) of the Trust Indenture Act.
Section
7.03. Reports By Trustee.
(a)
Within 60 days after of each year commencing with the year following the first issuance of Securities pursuant to Section 3.01,
if required by Section 313(a) of the Trust Indenture Act, the Trustee shall transmit pursuant to Section 313(c) of the Trust Indenture
Act a brief report dated as of such with respect to any of the events specified in said Section 313(a) which 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(b) of the Trust Indenture Act at the times specified therein.
(c)
Reports pursuant to this Section shall be transmitted in the manner and to the Persons required by Sections 313(c) and (d) of
the Trust Indenture Act.
Section
7.04. Reports By Company. The Company shall file with the Trustee and the Commission, and transmit to Holders, 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 any such information, documents or reports required to be filed
with the Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, shall be filed with the
Trustee within 15 days after the same is so required to be filed with the Commission.
Delivery
of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of
such shall not constitute constructive or other notice of any information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Officer’s Certificates).
Notwithstanding
the foregoing, to the extent any of the information required by this Section 7.04 is filed by the Company with the Commission
and publicly available on the Commission’s EDGAR system (or any successor system thereto), then such information shall be
deemed to be filed with the Trustee; provided, however, that the Trustee shall have no obligation whatsoever
to determine if such filing has occurred.
Article
Eight
Consolidation, Merger and Sales
Section
8.01. Company May Consolidate Etc., Only on Certain Terms. Nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation or merger of the Company with or into any other Person or Persons (whether or not affiliated with
the Company), or successive consolidations or mergers in which the Company or its successor or successors shall be a party or
parties, or shall prevent any conveyance, transfer or lease of the property of the Company as an entirety or substantially as
an entirety, to any other Person (whether or not affiliated with the Company); provided, however, that:
(1)
in case the Company shall consolidate with or merge into another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the entity formed by such consolidation or into which the Company is merged or the
Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Company substantially as an
entirety shall be a corporation organized and existing under the laws of the United States, any state thereof or the District
of Columbia and shall expressly assume, by one or more indentures supplemental hereto, executed and delivered by the successor
Person to the Trustee the due and punctual payment of the principal of (and premium, if any) and interest on or any Additional
Amounts in respect of all the Securities and the performance of every other covenant of this Indenture on the part of the Company
to be performed or observed;
(2)
immediately after giving effect to such transaction no Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be continuing; and
(3)
the successor Person has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, conveyance, transfer or lease and such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction have been complied with.
Section
8.02. Successor Corporation Substituted For Company. Upon any consolidation or merger or any conveyance, transfer or lease
of the properties and assets of the Company substantially as an entirety to any Person in accordance with Section 8.01, the successor
Person formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made
shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein, and thereafter, the Company shall be relieved of
all obligations and covenants under this Indenture and the Securities.
Article
Nine
Supplemental Indentures
Section
9.01. Supplemental Indentures Without Consent of Holders. Without the consent of any Holders, the Company, when authorized
by Board Resolutions, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto
for any of the following purposes:
(1)
to evidence the succession of another Person to the Company, and the assumption by any such successor of the covenants of the
Company herein and in the Securities;
(2)
to add to the covenants of the Company for the benefit of the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely
for the benefit of such series) or to surrender any right or power herein conferred upon the Company;
(3)
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 in uncertificated form;
(4)
to establish the form or terms of Securities of any series as permitted by Sections 2.01 and 3.01;
(5)
to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.10(b);
(6)
to cure any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or questions arising under this Indenture which shall not be inconsistent
with the provisions of this Indenture and which shall not adversely affect the interest of the Holders of Securities of any series
in any material respect;
(7)
to add to, delete from or revise the conditions, limitations and restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Securities, as herein set forth;
(8)
to add any additional Events of Default for the benefit of the Holders of all or any series of Securities (and if such additional
Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default
are expressly being included solely for the benefit of such series);
(9)
to modify, eliminate or add to the provisions of this Indenture to such extent as shall be necessary to conform the obligations
of the Company and the Trustee under this Indenture to the obligations imposed on such Persons hereunder pursuant to the Trust
Indenture Act or under any similar federal statute hereafter enacted and rules or regulations of the Commission thereunder;
(10)
to secure the Securities;
(11)
to conform any provision in this Indenture to the requirements of the Trust Indenture Act;
(12)
to make any change that does not adversely affect the legal rights under this Indenture of any Holder of Securities issued under
this Indenture;
(13)
to make provisions with respect to the exchange or conversion rights of Holders of Convertible Securities; or
(14)
to add to, change or eliminate any of the provisions of this Indenture in respect to one or more series of Securities; provided,
however, that any such addition, change or elimination (i) shall neither (A) apply to any Security of any series issued
prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (B) modify the rights
of the Holder of any such pre-existing series of any Security with respect to the application of such provision to such pre-existing
series of a Security or (ii) shall become effective only when there is no such pre-existing series of a Security outstanding.
Section
9.02. Supplemental Indentures With Consent of Holders. With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such supplemental indenture, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by Board Resolutions, and the Trustee may enter into an indenture
or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of
the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities of such series under this
Indenture; provided, however, that no such supplemental Indenture shall, without the consent of the Holder
of each Outstanding Security affected thereby, shall:
(1)
change the Stated Maturity of the principal of, or any installment of interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any Additional Amounts payable in respect thereof, or any premium payable upon the
redemption thereof, or change the obligation of the Company to pay Additional Amounts pursuant to Section 10.05 (except as contemplated
by Section 8.01(1) and permitted by Section 9.01(1)), or reduce the amount of the principal of an Original Issue Discount Security
that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02, extend the
time of payment of interest on any Security, or change any of the conversion, exchange or redemption provisions of any Security,
or change the Place of Payment, coin or currency in which any Security or any premium or the interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or
(2)
reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions
of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or
(3)
modify any of the provisions of this section, or Sections 5.12 or 5.13, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding
Security affected thereby.
The
Company may, but shall not be obligated to, fix a record date for the purposes of determining the Persons entitled to consent
to any indenture supplemental hereto. If a record date is fixed, the Holders on such record date, or their duly designated proxies,
and only such Persons, shall be entitled to consent to such supplemental indenture, whether or not such Holders remain Holders
after such record date; provided, however, that unless such consent shall have become effective by virtue of
the requisite percentage having been obtained
prior to the date which is 90 days after such record date, any such consent previously
given shall automatically and without further action by any Holder be cancelled and of no further effect.
A
supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of
Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It
shall not be necessary for any Act of Holders of Securities under this Section 9.02 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
Section
9.03. Execution of Supplemental Indentures. As a condition to executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of the trust created by this Indenture, the Trustee
shall be provided with, and (subject to Section 315 of the Trust Indenture Act) shall be fully protected in relying upon, an Officer’s
Certificate and an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by
this Indenture and that it complies with the terms of this Indenture and that such supplemental indenture is the legal, valid
and binding obligation of the Company, enforceable against the Company in accordance with its terms. The Trustee may, but shall
not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties, liabilities
or immunities under this Indenture or otherwise.
Section
9.04. Effect of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article Nine, this Indenture
shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of a Security theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
Section
9.05. Conformity With Trust Indenture Act. Every supplemental indenture executed pursuant to this Article Nine shall conform
to the requirements of the Trust Indenture Act as then in effect.
Section
9.06. Reference in Securities to Supplemental Indentures. Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article Nine may, and shall if required by the Company, bear a notation in form
approved by the Company as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities
of any series so modified as to conform, in the opinion of the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.
Section
9.07. Subordination Unimpaired. No supplemental indenture entered into under this Article Nine shall modify, directly or indirectly,
the provisions of Article Fifteen or the definition of Senior Indebtedness in Section 1.01 or establish a definition of Senior
Indebtedness pursuant to Section 3.01(19) in connection with any series of Securities, in any manner that might alter or impair
the subordination of the Securities with respect to Senior Indebtedness then outstanding, unless each holder of such Senior Indebtedness
has consented thereto in writing.
Article
Ten
Covenants
Section
10.01. Payment of Principal, Premium, If Any, and Interest. The Company covenants and agrees for the benefit of the Holders
of each series of Securities that it will duly and punctually pay the principal of (and premium, if any), interest on or any Additional
Amounts payable in respect of the Securities of that series in accordance with the terms of such series of Securities and this
Indenture. Unless otherwise provided with respect to a series of Securities, principal, premium, if any, and interest will be
considered paid on the date due if the Paying Agent, if other than the Company, holds as of 10:00 a.m. New York City time on the
due date money deposited by the Company in immediately available funds and designated for and sufficient to pay all principal,
premium, if any, and interest then due.
Section
10.02. Maintenance of Office or Agency. The Company will maintain in each Place of Payment for any series of Securities an
office or agency where Securities of such series may be presented or surrendered for payment, 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 prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the Trustee, at the place specified for the purpose
pursuant to Section 3.01, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands; provided, however, no service of legal process on the Company may be made at any office of
the Trustee.
The
Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series
may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the Company of their obligation to maintain
an office or agency in each Place of Payment for Securities of any series for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
Unless otherwise specified as contemplated by Section 3.01, the Company hereby designates as the Place of Payment for each series
the Corporate Trust Office of the Trustee.
Section
10.03. Money For Securities Payments to Be Held in Trust. If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the principal of (and premium, if any), or interest
on, any of the Securities of that series, segregate and hold in trust for the benefit of the Person entitled thereto a sum sufficient
to pay the principal (and premium, if any) or interest so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and will promptly notify the Trustee of its action or failure so to act.
Whenever
the Company shall have one or more Paying Agents for any series of Securities, it will, on or prior to each due date of the principal
of (and premium, if any), or interest on, any Securities of that series, deposit with any Paying Agent a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled
to such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee
of its action or failure so to act.
The
Company will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee
an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section 10.03, that such
Paying Agent will:
(1)
comply with the provisions of the Trust Indenture Act applicable to it as Paying Agent;
(2)
hold all sums held by it for the payment of the principal of (and premium, if any) or interest on Securities of that series in
trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as
herein provided;
(3)
give the Trustee notice of any default by the Company (or any other obligor upon the Securities of that series) in the making
of any payment of principal (and premium, if any) or interest on the Securities of that series; and
(4)
at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The
Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose,
pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent,
such sums to be held by the Trustee upon the same terms as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability
with respect to such money.
Except
as otherwise provided hereby or pursuant hereto, any money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of (and premium, if any) or interest and Additional Amounts on any Security
of any series and remaining unclaimed for two years after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be published once, in an English language newspaper of
general circulation, published on each Business Day, in each Place of Payment for such series or to be sent to Holders of Securities
for such series, or both, notice that such money remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication or delivery nor shall it be later than two years after such principal (and
premium, if any) or interest has become due and payable, any unclaimed balance of such money then remaining will be repaid to
the Company.
Section
10.04. Additional Amounts. If any Securities of a series provide for the payment of Additional Amounts, the Company agrees
to pay to the Holder of any such Security of any such series Additional Amounts as provided therein. Whenever in this Indenture
there is mentioned, in any context, the payment of the principal of (or premium, if any) or interest on, or in respect of, any
Security of any series or the net proceeds received on the sale or exchange of any Security of any series, such mention shall
be deemed to include mention of the payment of Additional Amounts provided by the terms of such series established hereby or pursuant
hereto to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such
terms and express mention of the payment of Additional Amounts (if applicable) in any provisions hereof shall not be construed
as excluding Additional Amounts in those provisions hereof where such express mention is not made.
Subject
to applicable unclaimed property laws, except as otherwise provided herein or pursuant hereto, if the Securities of a series provide
for the payment of Additional Amounts, at least 10 days prior to the first Interest Payment Date with respect to such series of
Securities (or if the Securities of that series shall not bear interest prior to Maturity, the first day on which a payment of
principal (and premium, if any, is made)), and at least 10 days prior to each date of payment of principal (and premium, if any)
or interest if there has been any change with respect to the matters set forth in the below-mentioned Officer’s Certificate,
the Company will furnish the Trustee and the principal Paying Agent or Paying Agents, if other than the Trustee, an Officer’s
Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal (and premium, if
any) of or interest on the Securities of that series shall be made to Holders of Securities of that series who are United States
Aliens without withholding for or on account of any tax, assessment or other governmental charge described in the Securities of
that series. If any such withholding shall be required, then such Officer’s Certificate shall specify by country the amount,
if any, required to be withheld on such payments to such Holders and the Company agrees to pay to the Trustee or such Paying Agent
the Additional Amounts required by this Section. The Company covenants to indemnify the Trustee and any Paying Agent for, and
to hold them harmless against, any loss, liability or expense reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by any of them in reliance on any Officer’s Certificate furnished
pursuant to this Section 10.04.
Section
10.05. Company Statement As To Compliance; Notice of Certain Defaults.
(a)
The Company will, in addition to the reports required by Section 7.04, deliver to the Trustee, within 120 days after the end of
each fiscal year (which on the date hereof ends on December 31), commencing December 31, 20[ ], a written statement, which need
not comply with Section 1.02, signed by the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating
Officer or an Executive Vice President and by the Chief Financial Officer, the Treasurer or an Assistant Treasurer of the Company,
stating, as to each signer thereof, that:
|
(1) |
a review of the activities of the Company during such year and of performance under this Indenture has been made under his supervision, and |
|
(2) |
to the best of his knowledge, based on such review, (a) the Company has fulfilled all of its obligations under this Indenture throughout such
year, or, if there has been a default in the fulfillment of any such obligation, specifying each such default known to him and the nature and status thereof, and (b) no event has occurred and is continuing which is, or after notice or lapse of
time or both would become, an Event of Default, or, if such an event has occurred and is continuing, specifying each such event known to him and the nature and status thereof. |
(b) The Company will deliver to the Trustee as soon as possible, and
in any event, within five days after the occurrence thereof,
written notice of any event which after notice or lapse of time or both would become an Event of Default.
Section
10.06. Payment of Taxes and Other Claims. The Company will pay or discharge or cause to be paid or discharged, before the
same shall become delinquent, (1) all taxes, assessments and governmental charges levied or imposed upon the Company or any Subsidiary
or upon the income, profits or property of the Company or any Subsidiary, and (2) all lawful claims for labor, materials and supplies
which, if unpaid, might by law become a lien upon the property of the Company or any Subsidiary; provided, however,
that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge
or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings.
Section
10.07. Corporate Existence. Subject to Article Eight, the Company will do or cause to be done all things necessary to preserve
and keep in full force and effect its corporate existence, rights (charter and statutory); provided, however,
that the Company shall not be required to preserve any such right or franchise if the Company shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and that the loss thereof is not disadvantageous
in any material respect to the Holders.
Section
10.08. Waiver of Certain Covenants. Except as otherwise specified as contemplated by Section 3.01 for Securities of such series,
the Company may omit in any particular instance to comply with any term, provision or condition set forth pursuant to Section
3.01(15), or in Section 10.06 or 10.07 with respect to the Securities of any series if before the time for such compliance the
Holders of at least a majority in principal amount of the Outstanding Securities of such series shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver
shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
Article
Eleven
Redemption of Securities
Section
11.01. Applicability of Article. Redemption of Securities of any series at the option of the Company as permitted or required
by the terms of such Securities shall be made in accordance with the terms of such Securities and (except as otherwise provided
herein or pursuant hereto or as specified as by Section 3.01) this Article Eleven.
Section
11.02. Election To Redeem; Notice To Trustee. The election of the Company to redeem any Securities shall be evidenced
by Board Resolution or in such other manner specified as contemplated by Section 3.01. In case of any redemption at the election
of the Company of the Securities of any series, with the same issue date, interest rate and Stated Maturity, the Company shall,
at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date and of the principal amount of Securities of such series to be redeemed.
Section
11.03. Selection By Trustee of Securities To Be Redeemed. If less than all the Securities of any series with the same issue
date, interest rate, Stated Maturity and other terms are to be redeemed, the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Trustee from the Outstanding Securities of such series not previously
called for redemption, by lot or such other method as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions of the principal amount of Securities of such series; provided, however,
that no such partial redemption shall reduce the portion of the principal amount of a Security of such series not redeemed to
less than the minimum denomination for a Security of such series established herein pursuant hereto.
If
any Convertible Security selected for partial redemption is converted in part before termination of the conversion right with
respect to the portion of the Security so selected, the converted portion of such Security shall be deemed (so far as may be)
to be the portion selected for redemption. Securities which have been converted during a selection of Securities to be redeemed
shall be treated by the Trustee as Outstanding Securities for the purpose of such selection.
The
Trustee shall promptly notify the Company and the Security Registrar (if other than itself) in writing of the Securities selected
for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed.
For
all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal of such Securities
which has been or is to be redeemed.
Section
11.04. Notice of Redemption. Notice of redemption shall be given in the manner provided in Section 1.06, not less than 30
nor more than 60 days prior to the Redemption Date, unless a shorter period is specified in the Securities to be redeemed, to
the Holders of Securities to be redeemed (provided notice may be given more than 60 days prior to the Redemption Date in connection
with a defeasance or the satisfaction and discharge of the series). Failure to give notice by sending in the manner herein provided
to the Holder of any Securities designated for redemption as a whole or in part, or any defect in the notice to any such Holder,
shall not affect the validity of the proceedings for the redemption of any other Securities or portion thereof.
Any
notice that is sent to the Holder of any Securities in the manner herein provided shall be conclusively presumed to have been
duly given, whether or not such Holder receives the notice.
All
notices of redemption shall state:
(1)
the Redemption Date,
(2)
the Redemption Price,
(3)
if less than all Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption,
the principal amount) of the particular Securities to be redeemed, or, in the case of global securities, the portion of such global
securities,
(4)
in case any Security is to be redeemed in part only, the notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the Holder of such Security will receive, without charge, a new Security or
Securities of authorized denominations for the principal amount thereof remaining unredeemed or, in the case of a global security,
the books and records of the U.S. Depositary and the Security Registrar or the Trustee will reflect the reduction in the principal
amount of such global security as a result of such partial redemption,
(5)
in the case of Convertible Securities, the Conversion Price then in effect, the date on which the right to convert the principal
amount of the Securities or the portions thereof to be redeemed will terminate and the place or places where such Securities may
be surrendered for conversion,
(6)
that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and that interest
thereon and Additional Amounts, if any, shall cease to accrue on and after said date,
(7)
the place or places where such Securities are to be surrendered for payment of the Redemption Price,
(8)
that the redemption is for a sinking fund, if such is the case, and
(9)
the CUSIP number, if any.
Notice
of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s
request, by the Trustee in the name and at the expense of the Company; provided, however, that if delivery is to be made
by the Trustee the Company shall have delivered to the Trustee, at least five Business Days (or such shorter period as may be
agreed to by the Trustee) before notice of redemption is required to be sent the redemption notice and a request for the Trustee
to make such delivery.
Section
11.05. Deposit of Redemption Price. On or prior to 10:00 a.m., New York City time on any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust
as provided in Section 10.03) an amount of money
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on and any Additional Amounts with respect thereto, all the Securities or
portions thereof which are to be redeemed on that date.
If
any Convertible Security or portion thereof called for redemption is converted in accordance with the terms of such Convertible
Security, any money deposited with the Trustee or so segregated and held in trust for the redemption of such Security or portion
thereof shall (subject to any right of the Holder of the Security on a Regular Record Date preceding such conversion to receive
interest) be paid to the Company upon Company Request or, if then held by the Company, shall be discharged from such trust.
Section
11.06. Securities Payable on Redemption Date. Notice of redemption having been given as aforesaid, the Securities so to be
redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such
date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease
to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid
by the Company through the Paying Agent at the Redemption Price, together with accrued interest (or any Additional Amounts) to
the Redemption Date; provided, however, that installments of interest on Securities whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the Regular Record Dates according to their terms and the provisions of Section
3.08.
If
any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if
any) shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.
Section
11.07. Securities Redeemed in Part. Any Security that is not a global security which is to be redeemed only in part shall
be surrendered at any office or agency of the Company maintained for that purpose pursuant to Section 10.02 (with, if the Company
or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing) and the Company shall execute and the
Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of
the same series, containing identical terms and provisions, of any authorized denomination as requested by such Holder in aggregate
principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.
Section
11.08. Conversion Arrangements on Call for Redemption. Notwithstanding anything to the contrary contained in this Indenture,
in connection with any redemption of Convertible Securities of any series, the Company, by an agreement with one or more investment
bankers or other purchasers, may arrange for such purchasers to purchase all such Convertible Securities called for redemption
(the “Called Securities”) which are either (i) surrendered for redemption or (ii) not duly surrendered for redemption
or conversion prior to the close of business on the Redemption Date, and to convert the same into shares of Common Stock, by the
purchasers’ depositing with the Trustee (acting as Paying Agent with respect to the deposit of such amount and as conversion
agent with respect to the conversion of such Called Securities), in trust for the Holders of the Called Securities, on or prior
to the Redemption Date in the manner agreed to by the Company and such purchasers, an amount sufficient to pay the Redemption
Price, payable by the Company on redemption of such Called Securities. In connection with any such arrangement for purchase and
conversion, the Trustee as Paying Agent shall pay on or after the Redemption Date such amounts so deposited by the purchasers
in exchange for Called Securities surrendered for redemption prior to the close of business on the Redemption Date and for all
Called Securities surrendered after such Redemption Date. Notwithstanding anything to the contrary contained in this Article Eleven,
the obligation of the Company to pay the Redemption Price of such Called Securities shall be satisfied and discharged to the extent
such amount is so paid by such purchasers. However, nothing in this Section 11.08 shall in any way relieve the Company of the
obligation to pay such Redemption Price on all Called Securities to the extent such amount is not so paid by said purchasers.
For all purposes of this Indenture, any Called Securities surrendered by the Holders for redemption, and any Called Securities
not duly surrendered for redemption or conversion prior to the close of business on the Redemption Date, shall be deemed acquired
by such purchasers from such Holders and surrendered by such purchasers for conversion and shall in all respects be deemed to
have been converted, all as of immediately prior to the close of business on the Redemption Date, subject to the deposit by the
purchasers of the above amount as aforesaid. Nothing in this Section 11.08 shall in any way limit the right of any Holder of a
Security to convert his Security pursuant to the terms of this Indenture and of such Security at any time prior to the close of
business on the Redemption Date applicable thereto.
Article
Twelve
Sinking Funds
Section
12.01. Applicability of Article. The provisions of this Article Twelve shall be applicable to any sinking fund for the retirement
of Securities of a series, except as otherwise permitted or required by any form of Security of such series issued pursuant to
this Indenture.
The
minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory
sinking fund payment,” and any payment in excess of such minimum amount provided for by the terms of Securities of such
series is herein referred to as an “optional sinking fund payment.” If provided for by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 12.02. Each sinking
fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such
series.
Section
12.02. Satisfaction of Sinking Fund Payments With Securities. The Company may, in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series to be made pursuant to the terms of such Securities as provided for
by the terms of such series (1) deliver Outstanding Securities of such series (other than any of such Securities previously called
for redemption or any of such Securities in respect of which cash shall have been released to the Company), and (2) apply as a
credit Securities of such series which have been redeemed either at the election of the Company pursuant to the terms of such
series of Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities,
provided that such series of Securities have not been previously so credited. Such Securities shall be received and credited for
such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
Section
12.03. Redemption of Securities For Sinking Fund. Not less than 90 days prior to each sinking fund payment date for any series
of Securities, the Company will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing
mandatory sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting of Securities
of that series pursuant to Section 12.02, and the optional amount, if any, to be added in cash to the next ensuing mandatory sinking
fund payment, and will also deliver to the Trustee any Securities to be so credited and not theretofore delivered. If such Officer’s
Certificate shall specify an optional amount to be added in cash to the next ensuing mandatory sinking fund payment, the Company
shall thereupon be obligated to pay the amount therein specified. Not less than 60 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section
11.03 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided
in Section 11.04. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 11.06 and 11.07.
Article
Thirteen
MEETINGS OF HOLDERS
Section
13.01. Purposes for Which Meetings May Be Called. A meeting of Holders of Securities of such series may be called at any time
and from time to time pursuant to this Article Thirteen to make, give or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be made, given or taken by Holders of Securities of such series.
Section
13.02. Call, Notice and Place of Meetings.
(a)
The Trustee may at any time call a meeting of Holders of Securities of any series for any purpose specified in Section 13.01,
to be held at such time and at such place in the Principle Office of the Trustee, as the Trustee shall determine. Notice of every
meeting of Holders of Securities of any series, setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner provided in Section 1.06, not less than 21 nor more
than 180 days prior to the date fixed for the meeting.
(b)
In case at any time the Company, pursuant to Board Resolution, or the Holders of at least 10% in principal amount of the Outstanding
Securities of any series shall have requested the Trustee to call a meeting
of the Holders of Securities of such series for any
purpose specified in Section 13.01, by written request setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have made the first publication of the notice of such meeting within 21 days after receipt
of such request or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the Holders
of Securities of such series in the amount above specified, as the case may be, may determine the time and the place for such
meeting and may call such meeting for such purposes by giving notice thereof as provided in subsection (a) of this Section.
Section
13.03. Persons Entitled to Vote at Meetings. To be entitled to vote at any meeting of Holders of Securities of any series,
a Person shall be (1) a Holder of one or more Outstanding Securities of such series, or (2) a Person appointed by an instrument
in writing as proxy for a Holder or Holders of one or more Outstanding Securities of such series by such Holder or Holders. The
only Persons who shall be entitled to be present or to speak at any meeting of Holders of Securities of any series shall be the
Persons entitled to vote at such meeting and their counsel, any representatives of the Trustee and its counsel and any representatives
of the Company and its counsel.
Section
13.04. Quorum; Action. The Persons entitled to vote a majority in principal amount of the Outstanding Securities of a series
shall constitute a quorum for a meeting of Holders of Securities of such series. In the absence of a quorum within 30 minutes
after the time appointed for any such meeting, the meeting shall, if convened at the request of Holders of Securities of such
series, be dissolved. In any other case the meeting may be adjourned for a period of not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such adjourned meeting. Notice of the reconvening of any adjourned meeting shall be given as provided
in section 13.02(a), except that such notice need be given only once not less than five days prior to the date on which the meeting
is scheduled to be reconvened. Notice of the reconvening of an adjourned meeting shall state expressly the percentage, as provided
above, of the principal amount of the Outstanding Securities of such series which shall constitute a quorum.
Except
as limited by the proviso to Section 9.02, any resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted only by the affirmative vote of the Holders of a majority in principal amount
of the Outstanding Securities of that series; provided, however, that, except as limited by the proviso to
Section 9.02, any resolution with respect to any request, demand, authorization, direction, notice, consent, waiver or other action
which this Indenture expressly provides may be made, given or taken by the Holders of a specified percentage, which is less than
a majority, in principal amount of the Outstanding Securities of a series may be adopted at a meeting or an adjourned meeting
duly reconvened and at which a quorum is present as aforesaid by the affirmative vote of the Holders of such specified percentage
in principal amount of the Outstanding Securities of that series.
Any
resolution passed or decision taken at any meeting of Holders of Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series, whether or not present or represented at the meeting.
Section
13.05. Determination of Voting Rights; Conduct and Adjournment of Meetings.
(a)
Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable
for any meeting of Holders of Securities of such series in regard to proof of the holding of Securities of such series and of
the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination
of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting
as it shall deem appropriate. Except as otherwise permitted or required by any such regulations, the holding of Securities shall
be proved in the manner specified in Section 1.04 and the appointment of any proxy shall be proved in the manner specified in
Section 1.04 or by having the signature of the Person executing the proxy witnessed or guaranteed by any trust company, bank or
banker authorized by Section 1.04 to certify to the holding of Bearer Securities. Such regulations may provide that written instruments
appointing proxies, regular on their face, may be presumed valid and genuine without the proof specified in Section 1.04 or other
proof.
(b)
The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities as provided in Section 13.02(b), in which case the Company or the Holders of
Securities of the series calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of
the meeting shall be elected by vote of the Persons entitled to vote a majority in principal
amount of the Outstanding Securities of such series represented at the meeting.
(c)
At any meeting each Holder of a Security of such series or proxy shall be entitled to one vote for each $1,000 principal amount
of Securities of such series held or represented by him; provided, however, that no vote shall be cast or counted
at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding.
The chairman of the meeting shall have no right to vote, except as a Holder of a Security of such series or proxy.
(d)
Any meeting of Holders of Securities of any series duly called pursuant to Section 13.02 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented
at the meeting; and the meeting may be held as so adjourned without further notice.
Section
13.06. Counting Votes and Recording Action of Meetings. The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be subscribed the signatures of the Holders of Securities
of such series or of their representatives by proxy and the principal amounts and serial numbers of the Outstanding Securities
of such series held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall
count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting
their verified written reports in triplicate of all votes cast at the meeting.
A
record, at least in triplicate, of the proceedings of each meeting of Holders of Securities of any series shall be prepared by
the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more Persons having knowledge of the facts setting forth a copy of the notice
of the meeting and showing that said notice was given as provided in Section 13.02 and, if applicable, Section 13.04. Each copy
shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one such copy shall
be delivered to the Company and another to the Trustee to be preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated.
Article
Fourteen
CONVERSION
Section
14.01. Conversion Privilege. Subject to and upon compliance with the provisions of this Article Fourteen and the terms of
the Convertible Securities of the series proposed to be converted, at the option of the Holder, any Convertible Security or any
portion of the principal amount thereof which is $1,000 or an integral multiple thereof, may be converted into shares of Common
Stock, as said shares shall be constituted at the Date of Conversion, at the Conversion Price for such Convertible Securities
of such series in effect at the Date of Conversion.
Section
14.02. Manner of Exercise of Convertible Privilege. In order to exercise the conversion privilege, the Holder of any Convertible
Security to be converted shall surrender such Convertible Security to the Company at its office or agency, together with the conversion
notice in the form provided on the Securities (or separate written notice) duly executed, and, if so required by the Company,
accompanied by instruments of transfer, in form satisfactory to the Company and to the Trustee, duly executed by the Holder or
by his duly authorized attorney in writing. Any registered Convertible Security so surrendered during the period from the close
of business on the Regular Record Date preceding an Interest Payment Date for such registered Convertible Security to the opening
of business on such Interest Payment Date shall (unless any such registered Convertible Security or the portion thereof being
converted shall have been called for redemption on a Redemption Date during such period, in which event no interest shall be payable
with respect to such registered Convertible Security or portion thereof, as the case may be, following such Redemption Date) also
be accompanied by payment in Clearing House funds or other funds acceptable to the Company of an amount equal to the interest
payable on such Interest Payment Date on the principal amount of such registered Convertible Security then being converted;
provided, however, that no such payment need be made if there shall exist, at the time of conversion, a default
in the payment of interest on the Convertible Securities of such series. Except as provided in the immediately preceding sentence,
no adjustment shall be made for interest accrued on any Convertible Security that shall be converted or for dividends on any shares
of Common Stock that shall be delivered upon the conversion of such Convertible Securities. The funds so delivered to such office
or agency shall be paid to the Company on or after such Interest Payment Date, unless the Company shall default in the payment
of the interest due on such Interest
Payment Date, in which event such funds shall be repaid to the Person who delivered the same.
As promptly as practicable after the surrender of any Convertible Security for conversion as aforesaid, the Company shall deliver
at said office or agency to such Holder, or on his written order, a certificate or certificates for the number of full shares
deliverable upon the conversion of such Convertible Security or portion thereof and a check or cash in respect of any fraction
of a share of Common Stock otherwise deliverable upon such conversion, all as provided in this Article Fourteen, together with
a Convertible Security or Convertible Securities of the same series in principal amount equal to the unconverted and unredeemed
portion, if any, of the Convertible Security so converted in accordance with Section 3.06 hereof. Such conversion shall be deemed
to have been effected on the date on which such notice shall have been received at said office or agency and such Convertible
Security shall have been surrendered as aforesaid, and the Person or Persons in whose name or names any certificate or certificates
for shares of Common Stock shall be deliverable upon such conversion shall be deemed to have become on said date the Holder or
Holders of record of the shares represented thereby; provided, however, that any such surrender on any date when
the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificates
are to be delivered as the record Holder or Holders thereof for all purposes on the next succeeding day on which such stock transfer
books are open, but such conversion shall be at the Conversion Price in effect on the date of such surrender.
Section
14.03. Cash Adjustment Upon Conversion. The Company shall not be required to deliver fractions of shares of Common Stock upon
conversions of Convertible Securities. If more than one Convertible Security shall be surrendered for conversion at one time by
the same Holder, the number of full shares which shall be deliverable upon conversion thereof shall be computed on the basis of
the aggregate principal amount of the Securities so surrendered. If any fractional interest in a share of Common Stock would be
deliverable upon the conversion of any Convertible Security or Securities, the Company shall make an adjustment therefor in cash
equal to the current market value of such fractional interest computed to the nearest cent either on the basis of the last reported
sale price regular way of the Common Stock on the Nasdaq Global Market (or, if not listed on the Nasdaq Global Market, then on
such other exchange on which the shares of Common Stock are listed as the Company may designate) on the last Business Day prior
to the Date of Conversion or, if there shall not have been a sale on such last Business Day, on the basis of the average of the
bid and asked quotations therefor on such exchange on such last Business Day or, if the Common Stock shall not then be listed
on any exchange, at the highest bid quotation in the over-the-counter market on such last Business Day as reported by the National
Association of Securities Dealers through Nasdaq, its automated system for reporting quotes, or its successor or such other generally
accepted source of publicly reported bid and asked quotations as the Company may reasonably designate.
Section
14.04. Conversion Price. The Conversion Price applicable to any series of Convertible Securities shall be the initial Conversion
Price set forth on the Officers’ Certificate or supplemental indenture establishing such series adjusted as provided in
this Article Fourteen.
Section
14.05. Adjustment of Conversion Price. The Conversion Price applicable to any series of Convertible Securities shall be adjusted
from time to time as follows:
(a)
In case the Company shall, at any time or from time to time while the Securities of any series are outstanding, (i) pay a dividend
on its Common Stock in shares of Common Stock, (ii) subdivide its outstanding shares of Common Stock into a larger number of shares,
or (iii) combine its outstanding Common Stock into a smaller number of shares, the Conversion Price for such series in effect
immediately prior thereto shall be adjusted so that the Holder of any Security of such series thereafter surrendered for conversion
shall be entitled to receive the number of shares of Common Stock or other securities of the Company which he would have owned
or have been entitled to receive after the happening of any of the events described above, had such Convertible Security of such
series been converted immediately prior to the happening of such event. An adjustment made pursuant to this subdivision (a) shall
become effective, in the case of a dividend, on the payment date retroactively to immediately after the opening of business on
the day following the record date for the determination of shareholders entitled to receive such dividend, subject to the provisions
of paragraph (g) of this Section 14.05, and shall become effective in the case of a subdivision or combination immediately after
the opening of business on the day following the day when such subdivision or combination, as the case may be, becomes effective.
(b)
In case the Company shall, at any time or from time to time while the Convertible Securities of any series are outstanding, issue
rights or warrants to all holders of its shares of Common Stock entitling them (for a period expiring within 45 days of the record
date mentioned below) to subscribe for or purchase shares of Common Stock at a price per share less than the current market price
per share of Common Stock (as defined in paragraph (d) below) at such record date, the Conversion Price of any series of Convertible
Securities in effect
immediately prior to the issuance of such rights or warrants shall be adjusted as follows: the number
of
shares of Common Stock into which $1,000 principal amount of Convertible Securities of such series was theretofore convertible
shall be multiplied by a fraction, of which the numerator shall be the number of shares of Common Stock outstanding immediately
prior to such record date plus the number of additional shares of Common Stock offered for subscription or purchase, and of which
the denominator shall be the number of shares of Common Stock outstanding immediately prior to such record date plus the number
of shares which the aggregate offering price of the total number of shares so offered would purchase at such current market price;
and the Conversion Price for such series of Convertible Securities shall be adjusted by dividing $1,000 by the new number of shares
into which $1,000 principal amount of Securities of such series shall be convertible as aforesaid. Such adjustment shall become
effective on the date of such issuance retroactively to immediately after the opening of business on the day following the record
date for the determination of shareholders entitled to receive such rights or warrants, subject to the provisions of paragraph
(g) of this Section 14.05. In determining whether any rights or warrants entitle the holders to subscribe for or purchase shares
of Common Stock at less than such current market price, and in determining the aggregate offering price of such shares, there
shall be taken into account any consideration received by the Company for such rights or warrants, the value of such consideration,
if other than cash, to be determined by the Board of Directors.
(c)
In case the Company shall, at any time from time to time while the Convertible Securities of any series are outstanding, distribute
to all holders of shares of its Common Stock evidences of its indebtedness or securities or assets (excluding cash dividends or
cash distributions payable out of consolidated net earnings or retained earnings) or rights or warrants to subscribe for shares
of Common Stock at a price per share less than the current market price per share of Common Stock, determined in the manner set
forth in paragraph (d) below, but excluding rights or warrants referred to in paragraph (b) above, the Conversion Price for such
series of Convertible Securities in effect immediately prior to such distribution shall be adjusted by multiplying the number
of shares of Common Stock into which $1,000 principal amount of Convertible Securities of such series of Convertible Securities
was theretofore convertible by a fraction, of which the numerator shall be the current market price per share of Common Stock
(as defined in paragraph (d) below) on the record date for such distribution, and of which the denominator shall be such current
market price per share of the Common Stock, less the then fair market value (as determined by the Board of Directors of the Company,
whose determination shall be conclusive) of the portion of such evidences of indebtedness, securities or assets or of such subscription
rights or warrants so distributed applicable to one share of Common Stock; and the Conversion Price for such series of Convertible
Securities shall be adjusted by dividing $1,000 by the new number of shares into which $1,000 principal amount of Convertible
Securities of such series shall be convertible as aforesaid. Such adjustment shall become effective on the date of such distribution
retroactively to immediately after the opening of business on the day following the record date for the determination of shareholders
entitled to receive such distribution, subject to the provisions of paragraph (g) of this Section 14.05. For the purposes of this
paragraph (c) consolidated net earnings or retained earnings shall be computed by adding thereto all charges against retained
earnings on account of dividends paid in shares of Common Stock in respect of which the Conversion Price has been adjusted, all
as determined by Independent Public Accountants, whose determination shall be conclusive.
(d)
For the purpose of any computation under paragraphs (b) and (c) above, the current market price per share of Common Stock at any
date shall be deemed to be the average of the market values of the shares of Common Stock for the ten consecutive Business Days
immediately preceding the day in question. The market value of the Common Stock for each day shall be determined as provided in
Section 14.03 hereof.
(e)
The Company may make such reductions in the Conversion Price for any series of Convertible Securities, in addition to those required
by paragraphs (a), (b) and (c) of this Section as it considers to be advisable in order that any event treated for Federal income
tax purposes as a dividend of stock or stock rights shall not be taxable to the recipients.
(f)
Except as herein otherwise provided, no adjustment in the Conversion Price for any series of Convertible Securities shall be made
by reason of the issuance, in exchange for cash, property or services, of shares of Common Stock, or any securities convertible
into or exchangeable for shares of Common Stock, or carrying the right to purchase any of the foregoing.
(g)
If the Company shall take a record of the holders of its shares of Common Stock for the purpose of entitling them to receive any
dividend or any subscription or purchase rights or any distribution and shall, thereafter and before the distribution to shareholders
of any such dividend, subscription or purchase rights or distribution, legally abandon its plan to pay or deliver such dividend,
subscription or purchase rights or
distribution, then no adjustment of the Conversion Price for any series of Convertible Securities
shall be required by reason of the taking of such record.
(h)
No adjustment in the Conversion Price for any series of Convertible Securities shall be required unless such adjustment would
require an increase or decrease of at least 1% in such price; provided, however, that any adjustments which
by reason of this paragraph (h) are not required to be made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Article Fourteen shall be made to the nearest cent or to the nearest one-hundredth of
a share, as the case may be.
(i)
Whenever the Conversion Price for any series of Convertible Securities is adjusted as herein provided, the Company shall (i) forthwith
place on file at the Principal Office of the Trustee an Officers’ Certificate showing in detail the facts requiring such
adjustment and the Conversion Price after such adjustment and shall exhibit the same from time to time to any Holder of Convertible
Securities of such series desiring an inspection thereof, and (ii) cause a notice stating that such adjustment has been effected
and the adjusted Conversion Price to be mailed to the Holders of registered Convertible Securities of such series at their last
addresses as they shall appear on the Security Register.
(j)
The Company may delete, modify or vary any of the provisions applicable to conversion of the Convertible Securities of any series,
or may add new provisions applicable thereto, all as may be contained in the Board Resolutions and Officers’ Certificate
or supplemental indenture establishing such series.
Section
14.06. Effect of Reclassifications, Consolidations, Mergers or Sales on Conversion Privilege. In case of any reclassification
or change of outstanding shares of the class of Common Stock issuable upon conversion of the Convertible Securities (other than
a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or
combination), or in case of any merger or consolidation of the Company with one or more other corporations (other than a merger
or consolidation in which the Company is the continuing corporation and which does not result in any reclassification or change
of outstanding shares of Common Stock issuable upon conversion of the Securities), or in case of the merger of the Company into
another corporation, or in case of any sale or conveyance to another corporation of the property of the Company as an entirety
or substantially as an entirety, the Holder of Convertible Securities then outstanding shall have the right to convert such Convertible
Security into the kind and amount of shares of capital stock or other securities and property, including cash, receivable upon
such reclassification, change, consolidation, merger, sale or conveyance by a holder of the number of shares of Common Stock into
which such Convertible Security might have been converted immediately prior to such reclassification, change, consolidation, merger,
sale or conveyance. In any such case the Company, or such successor or purchasing corporation, as the case may be, shall execute
with the Trustee one or more supplemental indentures (which shall conform to the Trust Indenture Act as in force at the date of
the execution of such supplemental indenture) containing provisions to the effect set forth above in this Section 14.06 and providing
further for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in this Article
Fourteen; and any such adjustment which shall be approved by the Board of Directors and set forth in such supplemental indenture
or supplemental indentures shall be conclusive for all purposes of this Section, and the Trustee shall not be under any responsibility
to determine the correctness of any provision contained in such supplemental indenture or supplemental indentures relating to
either the kind or amount of shares of stock or securities or property receivable by Holders of Securities of any series upon
the conversion of their Convertible Securities after any such reclassification, change, consolidation, merger, sale or conveyance.
The
above provisions of this Section 14.06 shall similarly apply to successive reclassifications, changes, consolidations, mergers,
sales and conveyances.
Section
14.07. Taxes on Conversions. The issue of stock certificates on conversions of Convertible Securities shall be made without
charge to the converting Holder of Convertible Securities for any tax in respect of the issue thereof. The Company shall not,
however, be required to pay any tax which may be payable in respect of any transfer involved in the issue and delivery of shares
in any name other than that of the Holder of any registered Convertible Security converted, and the Company shall not be required
to issue or deliver any such stock certificate unless and until the Person or Persons requesting the issue thereof shall have
paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been
paid.
Section
14.08. Company to Reserve Common Stock. The Company shall at all times reserve and keep available out of the aggregate of
its authorized but unissued shares or its issued shares held in its treasury, or both,
for the purpose of effecting the conversion
of the Securities, such number of its duly authorized shares of Common Stock as shall from time to time be sufficient to effect
the conversion of all outstanding Securities.
If
any shares of Common Stock reserved or to be reserved for the purpose of conversion of Securities hereunder require registration
with or approval of any governmental authority under any Federal or State law before such shares may be validly delivered upon
conversion, then the Company covenants that it will in good faith and as expeditiously as possible endeavor to secure registration
or approval, as the case may be.
The
Company covenants that all shares of Common Stock which may be delivered upon conversion of Convertible Securities shall upon
delivery be fully paid and nonassessable by the Company and free from all taxes, liens and charges with respect to the issue or
delivery thereof.
Section
14.09. Disclaimer by Trustee of Responsibility for Certain Matters. Neither the Trustee nor any conversion agent shall at
any time be under any duty or responsibility to any Holder of Convertible Securities of any series to determine whether any facts
exist which may require any adjustment of the Conversion Price for such series, or with respect to the nature or extent of any
such adjustment when made, or with respect to the method employed, or herein or in any supplemental indenture provided to be employed,
in making the same, subject, however, to the provisions of Sections 315(a) through 315(b) of the Trust Indenture Act. Neither
the Trustee nor any conversion agent shall be accountable with respect to the validity or value (or the kind or amount) of any
shares of Common Stock, or of any securities or property which may at any time be issued or delivered upon the conversion of any
Convertible Security; and neither of them makes any representation with respect thereto. Neither the Trustee nor any conversion
agent shall be responsible for any failure of the Company to make any cash payment or to issue, transfer or deliver any shares
of Common Stock or stock certificates or other securities or property upon the surrender of any Security for the purpose of conversion
or, subject to Sections 315(a) through 315(b) of the Trust Indenture Act, to comply with any of the covenants of the Company contained
in this Article Fourteen.
No
recourse may be taken with respect to the obligations of the Company or the Trustee against the Trustee in its individual capacity.
Section
14.10. Company to Give Notice of Certain Events. In the event:
(1)
that the Company shall pay any dividend or make any distribution to the holders of shares of Common Stock otherwise than in cash
charged against consolidated net earnings or retained earnings of the Company and its consolidated net earnings or retained earnings
of the Company and its consolidated subsidiaries or in Common Stock; or
(2)
that the Company shall offer for subscription or purchase, pro rata, to the holders of shares of Common Stock any additional shares
of stock of any class or any securities convertible into or exchangeable for stock of any class; or
(3)
of any reclassification or change in outstanding shares of the class of Common Stock issuable upon the conversion of the Securities
(other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision
or combination), or of any merger or consolidation of the Company with, or merger of the Company into, another corporation (other
than a merger or consolidation in which the Company is the continuing corporation and which does not result in any reclassification
or change of outstanding shares of Common Stock issuable upon conversion of the Securities), or of any sale or conveyance to another
corporation of the property of the Company as an entirety or substantially as an entirety;
then,
and in any one or more of such events, the Company will give to the Trustee and each conversion agent written notice thereof at
least fifteen days prior to (i) the record date fixed with respect to any of the events specified in (1) and (2) above, and (ii)
the effective date of any of the events specified in (3) above; and shall mail promptly a copy of such notice to the Holders
of registered Convertible Securities at their last addresses as they shall appear upon the Security Register. Failure to give
such notice, or any defect therein, shall not affect the legality or validity of such dividend, distribution, reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding up.
Article
Fifteen
Subordination
Section
15.01. Securities Subordinated to Senior Indebtedness. The Company covenants and agrees, and each Holder of Securities of
any series, by its acceptance thereof, likewise covenants and agrees, that the indebtedness evidenced by the Securities of any
series and the payment of the principal of (and premium, if any) and interest on and any Additional Amounts payable in respect
thereof is hereby expressly subordinated, to the extent and in the manner hereinafter set forth, in right of payment to the prior
payment in full of Senior Indebtedness.
Anything
in this Indenture or in the Securities of any series to the contrary notwithstanding, the indebtedness evidenced by the Securities
shall be subordinate and junior in right of payment, to the extent and in the manner hereinafter set forth, to all Senior Indebtedness:
(1)
In the event of any insolvency or bankruptcy proceedings, and any receivership, liquidation, reorganization, arrangement or other
similar proceedings in connection therewith, relative to the Company or to its property, and in the event of any proceedings for
voluntary liquidation, dissolution or other winding-up of the Company, whether or not involving insolvency or bankruptcy, then
the holders of Senior Indebtedness shall be entitled to receive payment in full of all principal, premium and interest on or other
amounts in respect of, all Senior Indebtedness before the Holders of the Securities are entitled to receive any payment on account
of principal, premium, if any, interest or Additional Amounts upon the Securities, and to that end (but subject to the power of
a court of competent jurisdiction to make other equitable provisions reflecting the rights conferred in the Securities upon Senior
Indebtedness and the Holders thereof with respect to the subordinated indebtedness represented by the Securities and the Holders
hereof by a lawful plan of reorganization under applicable bankruptcy law) the holders of Senior Indebtedness shall be entitled
to receive for application in payment thereof any payment or distribution of any kind or character, whether in cash or property
or securities, which may be payable or deliverable in any such proceedings in respect of the Securities after giving effect to
any concurrent payment or distribution in respect of such Senior Indebtedness, except securities which are subordinate and junior
in right of payment to the payment of all Senior Indebtedness then outstanding;
(2)
In the event that any Security of any series is declared or otherwise becomes due and payable before its expressed Maturity because
of the occurrence of an Event of Default hereunder (under circumstances when the provisions of the foregoing clause (1) or the
following clause (3) shall not be applicable), the holders of Senior Indebtedness outstanding at the time such Security so becomes
due and payable because of such occurrence of an Event of Default hereunder shall, so long as such declaration has not been rescinded
and annulled pursuant to Section 5.02, be entitled to receive payment in full of all principal of, and premium and interest on
or other amounts in respect of, all such Senior Indebtedness before the Holders of the Securities of such series are entitled
to receive any payment on account of principal of, premium, if any, or interest and Additional Amounts on the Securities of such
series. However, nothing herein shall prevent the Holders of Securities from seeking any remedy allowed at law or at equity so
long as any judgment or decree obtained thereby makes provision for enforcing this clause; and
(3)
In the event that any default shall occur and be continuing with respect to any Senior Indebtedness permitting the holders of
such Senior Indebtedness to accelerate the Maturity thereof, if either:
(A) notice of such default, in writing, shall have been given
to the Company and to the Trustee, provided that judicial proceedings
shall be commenced in respect of such default within 180 days in the case of a default in payment of principal or interest and
within 90 days in the case of any other default after the giving of such notice, and provided further that only one such notice
shall be given pursuant to this Section 13.01(3) in any twelve months period, or
(B) judicial proceedings shall be pending in respect of such
default,
the
Holders of the Securities and the Trustee for their benefit shall not be entitled to receive any payment on account of principal,
premium, if any, or interest and Additional Amounts thereon (including any such payment which would cause such default) unless
payment in full of all principal of, and premium and interest on or other amounts in respect of, such Senior Indebtedness shall
have been made or provided for. The Trustee, forthwith upon receipt of any notice received by it pursuant to this Section 13.01(3),
shall, as soon as practicable, send a notice thereof to each Holder of Securities of any series at the time outstanding as the
names and addresses of such Holders appear on the Security Register. In case despite the foregoing provisions, any payment or
distribution
shall, in any such event, be paid or delivered to any Holder of the Securities or to the Trustee for their benefit
before all Senior Indebtedness shall have been paid in full, such payment or distribution shall be held in trust for and so paid
and delivered to the holders of Senior Indebtedness (or their duly authorized representatives) until all Senior Indebtedness shall
have been paid in full.
The
Company shall give written notice to the Trustee within five days after the occurrence of any insolvency, bankruptcy, receivership,
liquidation, reorganization, arrangement or similar proceeding of the Company within the meaning of this Section 13.01. Upon any
payment or distribution of assets of the Company referred to in this Article Fifteen, the Trustee, subject to the provisions of
Section 315(a) through 315(b) of the Trust Indenture Act, and the Holders of the Securities shall be entitled to rely upon a certificate
of the trustee in bankruptcy, receiver, assignee for the benefit of creditors or other liquidating agent making such payment or
distribution, delivered to the Trustee or to the Holders of Securities, for the purpose of ascertaining the Persons entitled to
participate in such distribution, the holders of the Senior Indebtedness and other indebtedness of the Company, the amount thereof
or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article
Fifteen.
The
Trustee shall be entitled to conclusively rely on the delivery to it of a written notice by a Person representing himself to be
a holder of Senior Indebtedness (or a trustee or agent on behalf of such holder) to establish that such notice has been given
by a holder of Senior Indebtedness (or a trustee or agent on behalf of any such holder). In the event that the Trustee determines,
in good faith, that further evidence is required with respect to the right of any Person as a holder of Senior Indebtedness to
participate in any payment or distribution pursuant to this Section 13.01, the Trustee may request such Person to furnish evidence
to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such Person, as to the extent to
which such Person is entitled to participate in such payment or distribution, and as to other facts pertinent to the rights of
such Person under this Section 13.01, and if such evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such payment.
Section
15.02. Subrogation. Subject to the payment in full of all Senior Indebtedness to which the indebtedness evidenced by the Securities
of any series is in the circumstances subordinated as provided in Section 13.01, the Holders of the Securities of any series shall
be subrogated to the rights of the holders of such Senior Indebtedness to receive payments or distributions of cash, property
or securities of the Company applicable to such Senior Indebtedness until all amounts owing on the Securities shall be paid in
full. As between the Company, its creditors other than holders of such Senior Indebtedness, and the Holders of the Securities
of any series, no such payment or distribution made to the holders of such Senior Indebtedness by virtue of this Article Fifteen
which otherwise would have been made to the Holders of the Securities shall be deemed to be a payment by the Company on account
of such Senior Indebtedness, it being understood that the provisions of this Article Fifteen are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities of any series on the one hand, and the holders of the
Senior Indebtedness, on the other hand.
Section
15.03. Obligation of Company Unconditional. Nothing contained in this Article Fifteen or elsewhere in this Indenture or in
the Securities,
(1)
is intended to or shall impair as between its creditors other than the holders of Senior Indebtedness and the Holders of the Securities,
the obligation of the Company which is absolute and unconditional, to pay to the Holders of the Securities the principal of (and
premium, if any), interest on, or any Additional Amounts with respect to, the Securities as and when the same shall become due
and payable in accordance with their terms,
(2)
is intended to or shall affect the relative rights of the Holders of the Securities and creditors of the Company other than the
holders of Senior Indebtedness, or
(3)
prevents the Trustee or the Holder of any Security from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article Fifteen of the holders of Senior Indebtedness in respect
of cash, property or securities of the Company received upon the exercise of any such remedy.
Upon
any payment or distribution of assets of the Company referred to in this Article Fifteen, the Trustee and the Holders of the Securities
shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in which any such dissolution,
winding up, liquidation or reorganization proceeding affecting the affairs of the Company is pending or upon a certificate of
the trustee in bankruptcy, receiver, assignee for the
benefit of creditors, liquidating trustee or agent or other Person making
any payment or distribution, delivered to the Trustee or to the Holders of the Securities of any series, for the purpose of ascertaining
the Persons entitled to participate in such payment or distribution, the holders of the Senior Indebtedness and other indebtedness
of the Company the amount thereof or payable thereon, the amount paid or distributed thereon and all other facts pertinent thereto
or to this Article Fifteen.
Section
15.04. Payment on Securities Permitted. Nothing contained in this Article Fifteen or elsewhere in this Indenture, or in any
of the Securities of any series, shall affect the obligation of the Company to make, or prevent the Company from making payment
of the principal of (or premium, if any), interest or any Additional Amounts on the Securities of any series in accordance with
the provisions hereof and thereof, except as otherwise provided in this Article Fifteen.
Section
15.05. Effectuation of Subordination by Trustee. Each Holder of Securities of any series, by his or her acceptance thereof,
authorizes and directs the Trustee in his or her behalf to take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article Fifteen and appoints the Trustee his or her attorney-in-fact for any and all such purposes.
Section
15.06. Knowledge of Trustee. Notwithstanding the provisions of this Article Fifteen or any other provisions of this Indenture,
the Trustee shall not be charged with knowledge of the existence of any facts which would prohibit the making of any payment of
monies to or by the Trustee, or the taking of any other action by the Trustee, unless and until a Responsible Officer of the Trustee
shall have received written notice thereof from the Company, any Holder of the Securities of any series, any Paying Agent of the
Company or the holder or representative of any class of Senior Indebtedness.
Section
15.07. Trustee’s Relation to Senior Indebtedness. Except as otherwise provided in the Trust Indenture Act, the Trustee
shall be entitled to all the rights set forth in this Article Fifteen with respect to any Senior Indebtedness at the time held
by it, to the same extent as any other holder of Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee
of any of its rights as such holder. Notwithstanding anything in this Indenture or in the Securities of any series, nothing in
this Article Fifteen shall apply to or limit claims of or payment to the Trustee under or pursuant to Sections 5.06 and 6.07.
With
respect to holders of Senior Indebtedness, the Trustee undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article Fifteen, and no implied covenants or obligations with respect to the holders of
Senior Indebtedness shall be read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary
duty to the holders of Senior Indebtedness and the Trustee shall not be liable to any holder of Senior Indebtedness if it shall
pay over or deliver to Holders of Securities of any series, the Company or any other Person monies or assets to which any holder
of Senior Indebtedness shall be entitled by virtue of this Article Fifteen or otherwise.
No
recourse may be taken with respect to the obligations of the Company or the Trustee against the Trustee in its individual capacity.
Section
15.08. Rights of Holders of Senior Indebtedness Not Impaired. No right of any present or future holder of any Senior Indebtedness
to enforce the subordination herein shall at any time or in any way be prejudiced or impaired by any act or failure to act on
the part of the Company or by any non-compliance by the Company with the terms, provisions or covenants of this Indenture, regardless
of any knowledge thereof any such holder may have or be otherwise charged with.
*
* * * *
This
instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all
such counterparts shall together constitute but one and the same instrument. The words “execution,” “signed,”
“signature,” “delivery,” and words of like import in or relating to this Indenture or any document to
be signed in connection with this Indenture shall be deemed to include electronic signatures, deliveries or 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,
physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, and the parties hereto consent
to conduct the transactions contemplated hereunder by electronic means. Any facsimile or electronically transmitted copies hereof
or signature hereon shall, for all purposes, be deemed originals.
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.
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SOUTH PLAINS FINANCIAL, INC. |
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By: |
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Name: |
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Title: |
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, not in its individual capacity but solely
as Trustee |
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By: |
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Name: |
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Title: |
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Exhibit 5.1
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Hunton Andrews Kurth LLP
FILE NO: 069764.0000022
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| September 30, 2024 |
South
Plains Financial Inc.
5219
City Bank Parkway
Lubbock,
Texas 79407
Dear
Addressee:
We
have acted as counsel to South Plains Financial, Inc., a Texas corporation (the “Company”), in connection
with the preparation and filing by the Company of a Registration Statement on Form S-3 (the “Registration Statement”)
filed on the date hereof with the U.S. Securities and Exchange Commission (the “Commission”) pursuant to the
Securities Act of 1933, as amended (the “Securities Act”). The Registration Statement relates to the registration
and proposed issuance and sale from time to time by the Company of up to $150,000,000 aggregate initial offering price of (a) the
Company’s senior debt securities (the “Senior Debt Securities”); (b) the Company’s subordinated
debt securities (the “Subordinated Debt Securities” and, together with the Senior Debt Securities, the “Debt
Securities”); (c) shares of the Company’s common stock, par value $1.00 per share (the “Common Stock”);
(d) shares of the Company’s preferred stock, par value $1.00 per share (“Preferred Stock”); (e) depositary
shares representing Preferred Stock (“Depositary Shares”); (f) subscription rights for the purchase of Common
Stock, Preferred Stock, Depositary Shares or Debt Securities (the “Rights”); (g) warrants for the purchase
of Common Stock, Preferred Stock, Depositary Shares, Debt Securities or other securities of the Company (the “Warrants”);
and (h) units consisting of Senior Debt Securities, Subordinated Debt Securities, Common Stock, Preferred Stock, Depositary Shares,
Rights and/or Warrants (the “Units”). The Debt Securities, Common Stock, Preferred Stock, Depositary Shares,
Rights, Warrants and Units are collectively referred to herein as the “Securities.”
The
Debt Securities will be issued pursuant to one or more indentures to be entered into between the Company and the trustee thereunder
(each, an “Indenture”).
Any
Depositary Shares will be issued pursuant to one or more depositary share agreements (each, a “Depositary Agreement”)
to be entered into between the Company and the depositary agent to be named therein.
The
Warrants will be issued pursuant to one or more warrant agreements (each, a “Warrant Agreement”) to be entered
into between the Company and a bank or trust company, as debt warrant agent, as set forth in the applicable prospectus supplement
relating to the particular issuance of Warrants.
The
Units will be issued pursuant to one or more unit agreements (each, a “Unit Agreement”) between the Company
and a unit agent to be named therein, to be filed, if necessary, as set forth in the applicable prospectus supplement relating
to the particular issuance of Units.
ATLANTA
AUSTIN BANGKOK BEIJING BOSTON BRUSSELS CHARLOTTE DALLAS DUBAI HOUSTON
LONDON
LOS ANGELES MIAMI NEW YORK RICHMOND SAN FRANCISCO TOKYO TYSONS WASHINGTON, DC
www.HuntonAK.com
South Plains Financial, Inc.
September 30, 2024
Page 2
The
Securities are to be issued in one or more series and will be offered on a continuous or delayed basis pursuant to Rule 415 of
the Securities Act, from time to time as set forth in the Registration Statement, the prospectus contained therein and any amendments
or supplements thereto.
This
opinion letter is being furnished in accordance with the requirements of Item 16 of Form S-3 and Item 601(b)(5)(i) of
Regulation S-K promulgated under the Securities Act.
In rendering the opinions set forth below,
we have examined and relied on originals or copies, certified or otherwise identified to our satisfaction, of the following:
|
(i) |
the Registration Statement and the form of prospectus contained therein; |
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(ii) |
the forms of Indentures attached as Exhibit 4.5 and Exhibit 4.6 to the Registration Statement; and |
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(iii) |
originals or copies, certified or otherwise identified to our satisfaction, of such records of the Company and such
agreements, certificates of public officials, certificates of officers or other representatives of the Company and others such other documents, certificates and records, as we have deemed necessary or appropriate as a basis for the opinions set
forth herein. |
In
our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity
of all documents submitted to us as originals, and the conformity to authentic original documents of all documents submitted to
us as certified or photostatic copies. As to any facts material to the opinions and statements expressed herein that we did not
independently establish or verify, we have relied, to the extent we deem appropriate, upon (i) oral or written statements and
representations of officers and other representatives of the Company (including without limitation the facts certified in the
Opinion Support Certificate) and (ii) statements and certifications of public officials and others.
We
have assumed that, at the time of the issuance, sale and delivery of each series of Debt Securities and Warrants and each issue
of Depositary Shares, Common Stock, Preferred Stock, Rights, or Units, as the case may be: (i) the Registration Statement and
any amendments thereto (including post-effective amendments) will have become effective under the Securities Act and such effectiveness
will not have been terminated or rescinded; (ii) a prospectus supplement describing the Securities offered thereby will have been
prepared and filed with the Commission in compliance with the Securities Act and the Commission’s rules and regulations
thereunder; (iii) all Securities will be offered, issued and sold in compliance with applicable federal and state securities laws
and in the manner stated in the Registration Statement and the applicable prospectus supplement; (iv) if applicable, a definitive
purchase, underwriting, agency or similar agreement with respect to any Securities offered will have been duly authorized by the
Board of Directors of the Company (the “Board”) and validly executed and delivered by the Company and the other
parties thereto; (v) the execution, delivery and performance by the Company of the Indenture, Depositary Agreement,
South Plains Financial, Inc.
September 30, 2024
Page 3
Warrant Agreement,
subscription agreement or subscription rights certificate and Unit Agreement (collectively, the “Documents”),
as applicable, and all actions necessary for the issuance of the applicable Securities, and the form and terms thereof, will comply
with all requirements and restrictions, if any, applicable to the Company, whether imposed by any agreement or instrument to which
the Company is a party or by which it is bound or any court or other governmental or regulatory body having jurisdiction over
the Company; (vi) the Company will have duly authorized the execution, delivery and performance of each such Document and the
issuance of each such Security, and that none of such authorizations will have been modified or rescinded, and there will not
have occurred any change in law affecting the validity, legally binding character or enforceability thereof; and (vii) at the
time of any issuance of Common Stock, Preferred Stock or Securities convertible into, exchangeable, redeemable or exercisable
for Common Stock or Preferred Stock, there will be sufficient authorized but unissued shares of Common Stock or Preferred Stock,
as applicable, reserved for such issuance and any Securities issuable upon conversion, exchange, redemption or exercise of any
Securities being offered will be duly authorized and created.
We
have assumed that (i) the Documents will be governed by and construed in accordance with the laws of the State of New York, and
(ii) the Company is and will be a company duly incorporated and validly existing as a Texas corporation and in good standing under
the laws of the State of Texas.
Based
upon the foregoing and such other information and documents as we have considered necessary for the purposes hereof, and subject
to the assumptions, qualifications and limitations stated herein, we are of the opinion that:
|
1. |
With respect to any Debt Securities to be issued (including any Debt Securities duly issued upon exercise of Warrants),
when, as and if: (i) the Indenture has been duly executed and delivered on behalf of the Company and a trustee qualified to act as such under New York law and such Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended; (ii) the terms of the Debt Securities and of their issuance and sale have been duly established in conformity with the applicable Indenture; (iii) any legally required consents, approvals, authorizations and other orders of the
Commission and any other regulatory authorities have been obtained; and (iv) such Debt Securities have been duly executed by the Company and authenticated by the applicable trustee in accordance with the Indenture, or any applicable
supplemental indenture, and have been duly issued and delivered against payment therefor, then, upon the happening of such events, such Debt Securities will constitute the valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, under applicable laws of the State of New York. |
|
2. |
With
respect to the Common Stock to be issued, when, as and if: (i) the terms of the issuance and sale of the Common Stock have
been established so as to not violate any applicable law or the Charter Documents (as defined herein), or result in a default
under or a breach of any agreement or instrument binding upon the Company and so as to |
South Plains Financial, Inc.
September 30, 2024
Page 4
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|
comply with any requirements or restrictions imposed by any court, regulatory authority or other governmental body having jurisdiction over the Company; and (ii) certificates representing the
shares of Common Stock have been duly executed, countersigned, registered and delivered (or such shares are issued in uncertificated form in accordance with the Charter Documents and the Texas Business Organizations Code (“TBOC”)) either
(a) in accordance with the applicable purchase agreement approved by the Board upon payment of the consideration therefor (which is not less than the par value of the Common Stock) provided for therein or (b) upon conversion or exercise of any
other Security, in accordance with the terms of such Security or the instrument governing such Security providing for such conversion or exercise as approved by the Board, for the consideration approved by the Board (which is not less than the
par value of the Common Stock), then the shares of Common Stock will be validly issued, fully paid and nonassessable. |
|
3. |
With respect to any shares of Preferred Stock to be issued, when, as and if: (i) the resolutions relating to the
preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends, qualifications, and terms and conditions of redemption of such Preferred Stock have been duly filed with the State of Texas as part of a
certificate of designations to the Company’s Amended and Restated Certificate of Formation, as amended (the “Certificate of Formation”); (ii) the terms of the Preferred Stock and of their issuance and sale have been established so as to
not violate any applicable law or the Charter Documents, or result in a default under or a breach of any agreement or instrument binding upon the Company and so as to comply with any requirements or restrictions imposed by any court, regulatory
authority or other governmental body having jurisdiction over the Company; and (iii) certificates representing the shares of Preferred Stock have been duly executed, countersigned, registered and delivered (or such shares are issued in
uncertificated form in accordance with the Company’s Second Amended and Restated Bylaws (the “Bylaws” and together with the Certificate of Formation, the “Charter Documents”) and the TBOC) either (a) in accordance with the
applicable purchase agreement approved by the Board upon payment of the consideration therefor (which is not less than the par value of the Preferred Stock) provided for therein or (b) upon conversion or exercise of any other Security in
accordance with the terms of such Security or the instrument governing such Security providing for such conversion or exercise as approved by the Board, for the consideration approved by the Board (which is not less than the par value of the
Preferred Stock), then the shares of Preferred Stock will be validly issued, fully paid and nonassessable. |
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4. |
With
respect to the Depositary Shares to be issued, when, as and if: (i) any legally required consents, approvals, authorizations
and other orders of the Commission and any other regulatory authorities have been obtained; (ii) any shares of Preferred
Stock underlying the Depositary Shares have been duly and validly authorized and reserved for issuance and sale; (iii) the shares
of Preferred Stock represented by the Depositary |
South Plains Financial, Inc.
September 30, 2024
Page 5
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Shares have been duly executed and delivered to the applicable depositaries; and (iv) the depositary receipts evidencing the Depositary Shares have been duly executed and countersigned by the
depositary and issued against deposit of the Preferred Stock and against payment therefor in accordance with the applicable Depositary Agreement, then, upon the happening of such events, such Depositary Shares will constitute the valid and
binding obligations of the Company, enforceable against the Company in accordance with their terms. |
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5. |
With respect to the Rights to be issued, when, as and if: (i) any legally required consents, approvals, authorizations
and other orders of the Commission and any other regulatory authorities have been obtained; (ii) any shares of Common Stock or Preferred Stock or any Depositary Shares or Debt Securities purchasable upon exercise of such Rights, as applicable,
have been duly and validly authorized and reserved for issuance and sale; and (iii) the Rights have been duly executed and sold by the Company against payment therefor in accordance with any applicable subscription agreement or subscription
rights certificate, and in accordance with such corporate action and applicable law as contemplated in the Registration Statement and the prospectus supplement setting forth the terms of the Rights and the plan of distribution, then, upon the
happening of such events, the Rights will constitute the valid and binding obligations of the Company, enforceable against the Company in accordance with their terms. |
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6. |
With respect to the Warrants to be issued, when, as and if: (i) the Warrant Agreement has been duly executed and
delivered on behalf of the Company and the debt warrant agent; (ii) the terms of the Warrants and of their issuance and sale have been duly established in conformity with the applicable Warrant Agreement; (iii) any legally required consents,
approvals, authorizations and other orders of the Commission and any other regulatory authorities have been obtained; and (iv) such Warrants have been duly executed by the Company and authenticated by the applicable debt warrant agent in
accordance with the Warrant Agreement, and have been duly issued and delivered against payment therefor, then, upon the happening of such events, such Warrants will constitute the valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, under applicable laws of the State of New York. |
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7. |
With
respect to the Units to be issued, when, as and if: (i) any legally required consents, approvals, authorizations and other
orders of the Commission and any other regulatory authorities have been obtained; (ii) any shares of Common Stock or Preferred
Stock or any Debt Securities, Depositary Shares, Warrants or Rights to be issued pursuant to such Units, have been duly and validly
authorized and reserved for issuance and sale; and (iii) the Units and the other Securities underlying the Units have been
duly executed and sold by the Company against payment therefor in accordance with any applicable unit agreement, and in accordance
with such corporate action and applicable law and as |
South Plains Financial, Inc.
September 30, 2024
Page 6
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contemplated in the Registration Statement and the prospectus supplement setting forth the terms of the Units and the other Securities underlying the Units and the plan of distribution, then,
upon the happening of such events, the Units will constitute the valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, under applicable laws of the State of New York. |
The
foregoing opinions are limited solely to the laws of the State of New York and of the State of Texas. We express no opinion as
to any other laws, statutes, regulations or ordinances of any other jurisdiction, and we express no opinion as to the “blue
sky” laws of any jurisdiction.
Our
opinions herein regarding the enforceability or effect of any Document or Security are qualified by (i) bankruptcy, insolvency,
reorganization, arrangement, moratorium and other laws relating to or affecting the rights of creditors generally, including without
limitation fraudulent conveyance or transfer laws, and preference and equitable subordination laws and principles; (ii) general
principles of equity (whether considered in a proceeding at law or in equity); and (iii) concepts of materiality, unconscionability,
reasonableness, impracticability or impossibility of performance, good faith and fair dealing. We also express no opinion regarding
the effectiveness of any waiver of stay, extension or usury laws or of unknown future rights, and we express no opinion regarding
severability provisions.
We
hereby consent to the filing of this opinion letter with the Commission as an exhibit to the Registration Statement and to the
reference to our firm under the heading “Legal Matters” in the prospectus forming a part of the Registration Statement.
In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7
of the Securities Act or the rules and regulations of the Commission promulgated thereunder.
The
opinions expressed herein are rendered as of the date hereof, and we disclaim any obligation to advise you of facts, circumstances,
events or developments that hereafter may be brought to our attention and that may alter, affect or modify the opinions expressed
herein. Our opinion letter is expressly limited to the matters set forth above and we render no opinion, whether by implication
or otherwise, as to any matters beyond the matters expressly set forth herein.
Sincerely,
/s/ Hunton Andrews Kurth LLP
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 South Plains Financial, Inc. for the registration of securities with an aggregate
offering price of up to $150,000,000, of our report dated March 15, 2024, with respect to the financial statements of South Plains
Financial, Inc. included in this Annual Report on Form 10-K for the year ended December 31, 2023. We also consent to the reference
to our firm under the caption “Experts” in this registration statement.
/s/ Forvis Mazars, LLP
Houston, Texas
September 30, 2024
Exhibit 23.2
Consent of Independent
Registered Public Accounting Firm
To the Shareholders, Board of Directors and
Audit Committee
South Plains Financial, Inc.
Lubbock, Texas
We hereby consent to the
incorporation by reference in the Prospectus constituting a part of this Registration Statement on Form S-3 for registration of
securities up to $150,000,000 of our report dated March 7, 2022, relating to the consolidated financial statements of South Plains
Financial, Inc. for the year ended December 31, 2021 before the effects of the immaterial correction to retrospectively adjust
cash flow activity of certain mortgage loans described in Note 22 , appearing in the Annual Report on Form 10-K for the year ended
December 31, 2023 filed on March 15, 2024.
We also consent to the
reference to us under the caption “Experts” in the Prospectus.
/s/ Weaver and Tidwell,
L.L.P.
Fort Worth, Texas
September 30, 2024
Exhibit 107
Calculation of Filing Fee Tables
Form S-3
(Form Type)
South Plains Financial, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered and Carry Forward Securities
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Security Type
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Security Class Title
|
Fee Calculation
or Carry
Forward Rule
|
Amount
Registered(1)(2)
|
Proposed
Maximum
Offering
Price Per
Share(1)(2)
|
Maximum
Aggregate
Offering
Price(1)(2)
|
Fee Rate
|
Amount of
Registration
Fee
|
|
Newly Registered Securities
|
|
Fees to be Paid
|
Debt
|
Debt Securities (3)
|
Rule 457(o)
|
-
|
-
|
-
|
-
|
-
|
|
Equity
|
Common Stock, par value $1.00 per share
|
Rule 457(o)
|
-
|
-
|
-
|
-
|
-
|
|
Equity
|
Preferred Stock, par value $1.00 per share
|
Rule 457(o)
|
-
|
-
|
-
|
-
|
-
|
|
Other
|
Depositary Shares (4)
|
Rule 457(o)
|
-
|
-
|
-
|
-
|
-
|
|
Other
|
Subscription Rights (5)
|
Rule 457(o)
|
-
|
-
|
-
|
-
|
-
|
|
Other
|
Warrants (6)
|
Rule 457(o)
|
-
|
-
|
-
|
-
|
-
|
|
Other
|
Units (7)
|
Rule 457(o)
|
|
|
|
|
|
|
Unallocated (Universal) Shelf
|
-
|
Rule 457(o)
|
$150,000,000.00
|
|
$150,000,000.00
|
0.00014760
|
$22,140.00
|
| |
Total Offering Amounts
|
|
$150,000,000.00
|
|
$22,140.00
|
| |
Total Fees Previously Paid
|
|
|
|
-
|
| |
Total Fee Offsets
|
|
|
|
-
|
| |
Net Fee Due
|
|
|
|
$22,140.00
|
(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
preferred stock, such indeterminate principal amount of depositary shares and such indeterminate amount of debt securities, warrants, subscription rights and units of South Plains Financial, Inc. (“SPFI”), as having an aggregate initial
offering price not to exceed $150,000,000.00. 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 and preferred 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)
The debt securities being registered hereunder will consist of one or more series of senior
debt securities or subordinated debt securities, or any combination thereof, as more fully described herein.
(4)
The depositary shares registered hereunder will be evidenced by depositary receipts issued
pursuant to a deposit agreement. If the registrant elects to offer to the public fractional interests in shares of preferred stock, then depositary receipts will be distributed to those persons purchasing the fractional interests of preferred
stock and the shares will be issued to the depositary under the deposit agreement.
(5)
Subscription rights evidencing the right to purchase common stock, preferred stock, depositary
shares or debt securities.
(6)
Includes warrants to purchase common stock, preferred stock, depositary shares, debt securities
or other securities that may be registered hereunder and issued and sold from time to time.
(7)
Each unit will be issued under a unit agreement, indenture, or other agreement and will
represent an interest in one or more shares of common stock, preferred stock, debt securities, depositary shares, rights or warrants in any combination thereof.
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