As filed with the Securities and Exchange Commission on July 29, 2015
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
Bankwell Financial Group, Inc.
(Exact name of registrant as specified in its charter)
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Connecticut
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20-8251355
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(State or other jurisdiction of incorporation)
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(IRS Employer Identification No.)
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220 Elm Street
New Canaan, Connecticut 06840
(203) 652-0166
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Ernest J. Verrico
Executive Vice President and Chief Financial Officer
Bankwell Financial Group, Inc.
220 Elm Street
New Canaan, CT 06840
(203) 652-0166
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
William W. Bouton, III, Esq.
Sarah M. Lombard, Esq.
Hinckley, Allen & Snyder LLP
20 Church Street
Hartford, Connecticut 06103
Telephone: (860) 331-2626
Approximate date of commencement of proposed sale to the public: At such time or times on or after the effective date of this Registration Statement as the Registrant shall determine.
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, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting 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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(Do not check if a smaller reporting company)
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CALCULATION OF REGISTRATION FEE
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Title of each class of securities to be registered(1)
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Amount to be Registered/Proposed Maximum Offering Price/Proposed Maximum Aggregate Offering Price(2)(3)(4)
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Amount of Registration Fee
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Debt Securities
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$ |
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Preferred Stock, no par value per share(5)
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$ |
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Depositary Shares(6)
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$ |
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Common Stock, no par value per share(7)
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$ |
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Stock Purchase Contracts
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$ |
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Stock Purchase Units
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$ |
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Warrants(8) |
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$ |
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Units(9) |
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$ |
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Total
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50,000,000 |
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5,810 |
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(1)
An indeterminate amount of the securities of each identified class is being registered as may from time to time be offered, reoffered or resold hereunder.
(2)
Certain information as to each class of securities to be registered is not specified, in accordance with General Instruction II.D to Form S-3 under the Securities Act of 1933.
(3)
The proposed maximum aggregate offering price has been estimated solely to calculate the registration fee under Rule 457(o) of the Securities Act.
(4)
Such indeterminate amount or number of shares of common stock, preferred stock, debt securities, depository shares, stock purchase contracts, stock purchase units, units and warrants to purchase any combination of the foregoing securities, as may from time to time be issued at indeterminate prices. Securities registered hereunder may be sold separately, together or as units with other securities registered hereunder.
(5)
Preferred stock may be issued directly or upon conversion, exchange or exercise of debt securities, warrants or units.
(6)
Each depositary share will be issued under a depositary agreement, will represent an interest in a fractional share or multiple shares of preferred stock and will be evidenced by a depositary receipt.
(7)
Shares of common stock may be issuable upon conversion of shares of preferred stock registered hereunder. No separate consideration will be received for such shares of common stock.
(8)
Warrants will represent rights to purchase debt securities, preferred stock, depositary shares or common stock registered hereby. Because the warrants will provide a right to purchase only such securities offered hereunder, no additional registration fee is required.
(9)
Each unit will be issued under a unit agreement and will represent an interest in two or more securities, which may be or may not be separable from one another.
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
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 Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED July 29, 2015
Debt Securities
Common Stock
Preferred Stock
Depositary Shares
Stock Purchase Contracts and Stock Purchase Units
Warrants
Units
We may issue, separately or together, debt securities, preferred stock, depositary shares, common stock, stock purchase contracts, stock purchase units, warrants and units, and we may offer and sell, separately or together, these securities from time to time in one or more offerings.
This prospectus describes the general terms of these securities and the general manner in which these securities may be offered. We will provide the specific terms of any securities offered in a supplement to this prospectus at the time of the offering. The prospectus supplement for each offering of securities will also describe the specific manner in which the securities will be offered and may also supplement, update or amend information contained in this document. You should read this prospectus and any applicable prospectus supplement before you invest.
We may offer these securities in amounts, at prices and on terms determined at the time of offering. The securities may be sold directly to you, through agents, or through underwriters and dealers. If agents, underwriters or dealers are used to sell the securities, we will name them and describe their compensation in a prospectus supplement. Our net proceeds from the sale of these securities will also be set forth in the applicable prospectus supplement.
Our common stock is listed on the NASDAQ Global Market under the symbol “BWFG.”
Investing in these securities involves certain risks. See “Risk Factors” on page
2 of this prospectus and as included in any accompanying prospectus supplement and in the documents incorporated by reference in this prospectus and the accompanying prospectus supplement for a discussion of the factors you should carefully consider before deciding to purchase these securities.
Our principal executive offices are located at 220 Elm Street, New Canaan, Connecticut 06840, and our telephone number at that location is (203) 652-0166.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The offered securities are not savings accounts, deposits or other obligations of any bank or savings association and are not insured or guaranteed by the Federal Deposit Insurance Corporation or any other governmental agency.
The date of this prospectus is _______________, 2015.
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, which we refer to as the SEC, utilizing a “shelf” registration process. Under this shelf registration process, we may from time to time sell any combination of the securities described in this prospectus in one or more offerings up to a total dollar amount of $50 million of securities as described in this prospectus. We may offer any of the following securities: debt securities, preferred stock, depositary shares, common stock, stock purchase contracts, stock purchase units, warrants and units. We may also offer warrants to purchase debt securities, preferred stock, depositary shares or common stock or units consisting of one or more of the other securities described in this prospectus in any combination.
This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide one or more prospectus supplements that will contain specific information about the terms of the offering. The prospectus supplement may also add, update or change information contained in this prospectus. You should read both this prospectus and the accompanying prospectus supplement together with the additional information described in this prospectus under the heading “Where You Can Find More Information.”
You should rely only on the information contained in or incorporated by reference in this prospectus, any accompanying prospectus supplement or in any related free writing prospectus filed by us with the SEC. We have not authorized anyone to provide you with different information. This prospectus and any accompanying prospectus supplement do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the securities described in the accompanying prospectus supplement or an offer to sell or the solicitation of an offer to buy such securities in any circumstances in which such offer or solicitation is unlawful. You should assume that the information appearing in this prospectus, any prospectus supplement and the documents incorporated by reference is accurate only as of their respective dates. Our business, financial condition, results of operations and prospects may have changed materially since those dates.
The terms ‘‘Bankwell,’’ ‘‘we,’’ ‘‘our,’’ and ‘‘us’’ refer, collectively, to Bankwell Financial Group, Inc., a Connecticut corporation, and its subsidiary, Bankwell Bank.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the public over the Internet at the SEC’s website at http://www.sec.gov. Copies of certain information filed by us with the SEC are also available on our website at http://investor.mybankwell.com/CorporateProfile.aspx?iid=4143686. Our website is not a part of this prospectus and is not incorporated by reference in this prospectus. You may also read and copy any document we file at the SEC’s Public Reference Room, 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the Public Reference Room.
This prospectus is part of a registration statement on Form S-3 we filed with the SEC. This prospectus omits some information contained in the registration statement in accordance with SEC rules and regulations. You should review the information and exhibits in the registration statement for further information on us and our consolidated subsidiaries and the securities we are offering. Statements in this prospectus concerning any document we filed as an exhibit to the registration statement or that we otherwise filed with the SEC are not intended to be comprehensive and are qualified by reference to these filings. You should review the complete document to evaluate these statements.
INCORPORATION BY REFERENCE
The SEC allows us to incorporate by reference much of the information we file with them, which means that we can disclose important information to you by referring you to those publicly available documents. The information that we incorporate by reference in this prospectus is considered to be part of this prospectus. Because we are incorporating by reference future filings with the SEC, this prospectus is continually updated and those future filings may modify or supersede some of the information included or incorporated in this prospectus. This means that you must look at all of the SEC filings that we incorporate by reference to determine if any of the statements in this prospectus or in any document previously incorporated by reference have been modified or superseded. This prospectus incorporates by reference the documents listed below (File No. 001-36448 unless otherwise noted) and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (in each case, other than those documents or the portions of those documents not deemed to be filed) until the offering of the securities under the registration statement is terminated or completed:
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Annual Report on Form 10-K for the fiscal year ended December 31, 2014 filed with the SEC on March 16, 2015, including portions of our definitive Proxy Statement filed with the SEC on April 22, 2015;
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Quarterly Report on Form 10-Q for the quarter ended March 31, 2015, as filed with the SEC on May 11, 2015;
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Current Reports on Form 8-K filed on January 20, 2015 (reporting under Items 5.02 and 9.01); January 29, 2015 (reporting under Items 2.02 and 9.01); February 27, 2015 (reporting under Items 5.02 and 9.01); March 3, 2015 (reporting under Item 8.01); April 13, 2015 (reporting under Items 5.02 and 9.01); April 30, 2015 (reporting under Items 2.02 and 9.01); May 27, 2015 (reporting under Item 5.02) and July 27, 2015 (reporting under Items 2.02 and 9.01) (other than any portions of the documents furnished and not filed); and
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Description of our common stock contained in our Registration Statement on Form S-1 originally filed with the SEC on April 4, 2014 (File No. 333-195080), and all amendments or reports filed for the purpose of updating such description.
You may request a copy of these filings, at no cost, by writing or telephoning us at the following address or phone number:
Bankwell Financial Group, Inc.
220 Elm Street
New Canaan, Connecticut 06840
Telephone: (203) 652-0166
Attn: Executive Vice President, Chief Financial Officer
FORWARD-LOOKING STATEMENTS
This prospectus and the information incorporated by reference in this prospectus include “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Securities Exchange Act of 1934 as amended, or the Exchange Act. Any statements contained in or incorporated by reference into this prospectus and the information incorporated by reference in this prospectus that are not statements of historical fact should be considered forward-looking statements. You can identify these forward-looking statements by the use of the words like “believes,” “expects,” “anticipates,” “plans,” “may,” “will,” “would,” “intends,” “estimates” and other similar expressions, whether in the negative or affirmative. These forward-looking statements are based on current expectations, estimates, forecasts and projections about the industry and markets in which we operate and management’s beliefs and assumptions, and should be read in conjunction with the risk factors and cautionary statements described in the other documents we file from time to time with the SEC, specifically our most recent Annual Report on Form 10-K, our Quarterly Reports on Form 10-Q and our Current Reports on Form 8-K. We cannot guarantee that we actually will achieve the plans, intentions or expectations disclosed in the forward-looking statements made. There are a number of important risks and uncertainties that could cause our actual results to differ materially from those indicated by such forward-looking statements. These risks and uncertainties include, without limitation, risks that emerge from time to time that are not possible for us to predict. Forward-looking statements speak only as of the date of this prospectus (unless another date is indicated). We disclaim any obligation to update publicly any forward-looking statements whether as a result of new information, future events or otherwise, except to the extent required by law.
BANKWELL FINANCIAL GROUP, INC.
Bankwell Financial Group, Inc. is a bank holding company, headquartered in New Canaan, Connecticut and offers a broad range of financial services through our banking subsidiary, Bankwell Bank, a Connecticut state commercial bank founded in 2002. Our primary market is the greater Fairfield County, Connecticut area, which we serve from our main banking office located in New Canaan, Connecticut and six other branch offices located throughout the Fairfield County area. In addition, two additional branches were added as a result of the merger with Quinnipiac Bank and Trust Company in the fourth quarter of 2014 located in New Haven County, Connecticut. As of June 30, 2015, on a consolidated basis, we had total assets of approximately $1.2 billion, net loans of approximately $1.0 billion, total deposits of approximately $951.6 million, and shareholders’ equity of approximately $133.7 million.
Our common stock is listed on the NASDAQ Global Market under the ticker symbol ‘‘BWFG.’’ Our principal executive offices are located at 220 Elm Street, New Canaan, Connecticut 06840, and our telephone number at this location is (203) 652-0166.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratio of earnings to fixed charges for the periods indicated.
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Six Months Ended June 30, 2015
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Years Ended December 31,
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2014
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2013
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2012
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2011
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2010
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Ratio of earnings to fixed charges(1): |
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Excluding interest on deposits
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8.50 |
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9.37 |
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11.48 |
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2.79 |
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3.74 |
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1.59x |
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Including interest on deposits
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3.04 |
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2.64 |
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3.50 |
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1.55 |
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2.00 |
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1.20x |
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(1)
For purposes of computing this ratio (i) earnings consist of income before income taxes plus fixed charges, (ii) fixed charges, excluding interest on deposits, include interest expense (other than on deposits), preferred stock dividends and the estimated portion of rental expense attributable to interest, and (iii) fixed charges, including interest on deposits, include all interest expense, preferred stock dividends and the estimated portion of rental expense attributable to interest.
RISK FACTORS
Investing in our securities involves risks. You should carefully consider the risks described in any prospectus supplement and in the documents incorporated by reference herein before making an investment decision. These risks are not the only ones facing our company. Additional risks not presently known to us or that we currently deem immaterial may also impair our business operations. Our business, financial condition or results of operations could be materially adversely affected by the materialization of any of these risks. The trading price of our securities could decline due to the materialization of any of these risks, and you may lose all or part of your investment. This prospectus, any prospectus supplement and the documents incorporated herein by reference may also contain forward-looking statements that involve risks and uncertainties. Actual results could differ materially from those anticipated in these forward-looking statements as a result of certain factors, including the risks described in the documents incorporated herein by reference, including (1) our Annual Report on Form 10-K, (2) our Quarterly Report on Form 10-Q and (3) documents we file with the SEC after the date of this prospectus and which are deemed incorporated by reference in this prospectus.
USE OF PROCEEDS
We intend to use the net proceeds from the sale of the securities offered under this prospectus for general corporate purposes unless otherwise indicated in the applicable prospectus supplement. General corporate purposes may include:
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refinancing, reducing or repaying debt;
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repurchasing outstanding common and preferred stock;
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investments in Bankwell Bank and our other subsidiaries as regulatory capital;
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financing possible investments or acquisitions;
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expansion of the business;
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investments at the holding company level;
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working capital; and
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capital expenditures.
The prospectus supplement with respect to an offering of offered securities may identify different or additional uses for the proceeds of that offering. We may temporarily invest the net proceeds in investment-grade, interest-bearing securities until they are used for their stated purpose.
DESCRIPTION OF DEBT SECURITIES
Future debt securities, consisting of notes, debentures or other evidences of indebtedness, may be issued from time to time in one or more series pursuant to, in the case of senior debt securities, a senior indenture to be entered into between us and a trustee to be named therein, and in the case of subordinated debt securities, a subordinated indenture to be entered into between us and a trustee to be named therein. The terms of our debt securities will include those set forth in the indentures and those made a part of the indentures by the Trust Indenture Act of 1939, as amended, or the Trust Indenture Act.
Because the following is only a summary of selected provisions of the indentures and the debt securities, it does not contain all information that may be important to you. This summary is not complete and is qualified in its entirety by reference to the base indentures and any supplemental indentures thereto or officer’s certificate or resolution of our board of directors related thereto. We urge you to read the indentures because the indentures, not this description, define the rights of the holders of the debt securities. We expect that the senior indenture and the subordinated indenture will be substantially in the forms included as exhibits to the registration statement of which this prospectus is a part.
General
The senior debt securities will constitute our unsecured and unsubordinated obligations and will rank pari passu with our other unsecured and unsubordinated obligations. The subordinated debt securities will constitute our unsecured and subordinated obligations and will be junior in right of payment to our Senior Indebtedness (including senior debt securities), as described under the heading “Certain Terms of the Subordinated Debt Securities — Subordination.”
The debt securities will be our unsecured obligations. Any secured debt or other secured obligations will be effectively senior to the debt securities to the extent of the value of the assets securing such debt or other obligations.
The applicable prospectus supplement will include any additional or different terms of the debt securities being offered, including the following terms:
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the debt securities’ designation;
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the aggregate principal amount of the debt securities;
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the percentage of their principal amount (i.e., price) at which the debt securities will be issued;
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the date or dates on which the debt securities will mature and the right, if any, to extend such date or dates;
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the rate or rates, if any, per year, at which the debt securities will bear interest, or the method of determining such rate or rates;
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the date or dates from which such interest will accrue, the interest payment dates on which such interest will be payable or the manner of determination of such interest payment dates and the record dates for the determination of holders to whom interest is payable on any interest payment date;
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the right, if any, to extend the interest payment periods and the duration of that extension;
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the manner of paying principal and interest and the place or places where principal and interest will be payable;
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provisions for a sinking fund, purchase fund or other analogous fund, if any;
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the period or periods, if any, within which, the price or prices at which, and the terms and conditions upon which the debt securities may be redeemed, in whole or in part, at our option or at your option;
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the form of the debt securities;
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any provisions for payment of additional amounts for taxes and any provision for redemption, if we must pay such additional amounts in respect of any debt security;
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the terms and conditions, if any, upon which we may have to repay the debt securities early at your option;
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the currency, currencies or currency units in which the debt securities will be denominated and the currency, currencies or currency units in which principal and interest, if any, on the debt securities may be payable;
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the terms and conditions upon which conversion or exchange of the debt securities may be effected, if any, including the initial conversion or exchange price or rate and any adjustments thereto and the period or periods when a conversion or exchange may be effected;
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whether and upon what terms the debt securities may be defeased;
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any events of default or covenants in addition to or in lieu of those set forth in the indenture;
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provisions for electronic issuance of debt securities or for debt securities in uncertificated form; and
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any other terms of the debt securities, including any terms which may be required by or advisable under applicable laws or regulations or advisable in connection with the marketing of the debt securities.
When we refer to “principal” in this section with reference to the debt securities, we are also referring to “premium or discount, if any.”
We may from time to time, without notice to or the consent of the holders of any series of debt securities, create and issue further debt securities of any such series ranking equally with the debt securities of such series in all respects (or in all respects other than (1) the payment of interest accruing prior to the issue date of such further debt securities or (2) the first payment of interest following the issue date of such further debt securities). Such further debt securities may be consolidated and form a single series with the debt securities of such series and have the same terms as to status, redemption or otherwise as the debt securities of such series.
You may present debt securities for exchange and you may present debt securities for transfer in the manner, at the places and subject to the restrictions set forth in the debt securities and the applicable prospectus supplement. We will provide you those services without charge, although you may have to pay any tax or other governmental charge payable in connection with any exchange or transfer, as set forth in the indenture.
Debt securities may bear interest at a fixed rate or a floating rate. Debt securities bearing no interest or interest at a rate that at the time of issuance is below the prevailing market rate (original issue discount securities) may be sold at a discount below their stated principal amount. Special U.S. federal income tax considerations applicable to any such discounted debt securities or to certain debt securities issued at par which are treated as having been issued at a discount for U.S. federal income tax purposes will be described in the applicable prospectus supplement.
We may issue debt securities with the principal amount payable on any principal payment date, or the amount of interest payable on any interest payment date, to be determined by reference to one or more currency exchange rates, securities or baskets of securities, commodity prices or indices. You may receive a payment of principal on any principal payment date, or a payment of interest on any interest payment date, that is greater than or less than the amount of principal or interest otherwise payable on such dates, depending on the value on such dates of the applicable currency, security or basket of securities, commodity or index. Information as to the methods for determining the amount of principal or interest payable on any date, the currencies, securities or baskets of securities, commodities or indices to which the amount payable on such date is linked and certain additional tax considerations will be set forth in the applicable prospectus supplement.
Certain Terms of the Senior Debt Securities
Covenants. Unless otherwise indicated in a prospectus supplement, the senior debt securities will not contain any financial or restrictive covenants, including covenants restricting either us or any of our subsidiaries from incurring, issuing, assuming or guaranteeing any indebtedness secured by a lien on any of
our or our subsidiaries’ property or capital stock, or restricting either us or any of our subsidiaries from entering into sale and leaseback transactions.
Consolidation, Merger and Sale of Assets. Unless we indicate otherwise in a prospectus supplement, we may not consolidate with or merge into any other person, in a transaction in which we are not the surviving corporation, or convey, transfer or lease our properties and assets substantially as an entirety to any person, unless:
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the successor entity, if any, is a U.S. corporation (subject to certain exceptions provided for in the senior indenture);
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the successor entity assumes our obligations on the senior debt securities and under the senior indenture;
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immediately after giving effect to the transaction, no default or event of default shall have occurred and be continuing; and
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certain other conditions are met.
No Protection in the Event of a Change in Control. Unless otherwise indicated in a prospectus supplement with respect to a particular series of senior debt securities, the senior debt securities will not contain any provisions that may afford holders of the senior debt securities protection in the event we have a change in control or in the event of a highly leveraged transaction (whether or not such transaction results in a change in control).
Events of Default. An event of default for any series of senior debt securities is defined under the senior indenture as being:
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our default in the payment of principal or premium on the senior debt securities of such series when due and payable whether at maturity, upon redemption, by declaration or otherwise (and if specified for such series, the continuance of such failure for a specified period);
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our default in the payment of interest on any senior debt securities of such series when due and payable, if that default continues for a period of 30 days (or such other period as may be specified for such series);
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our default in the performance of or breach of any of our other covenants or agreements in the senior indenture applicable to senior debt securities of such series, other than a covenant breach which is specifically dealt with elsewhere in the senior indenture, and that default or breach continues for a period of 90 days after we receive written notice from the trustee or from the holders of 25% or more in aggregate principal amount of the senior debt securities of such series;
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certain events of bankruptcy or insolvency, whether or not voluntary; and
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any other event of default provided for in such series of senior debt securities.
If an event of default other than an event of default specified in the fourth bullet point above occurs with respect to a series of senior debt securities and is continuing under the senior indenture, then, and in each and every such case, either the trustee or the holders of not less than 25% in aggregate principal amount of such series then outstanding under the senior indenture (each such series voting as a separate class) by written notice to us and to the trustee, if such notice is given by the holders, may, and the trustee at the request of such holders shall, declare the principal amount of and accrued interest on such series of senior debt securities to be immediately due and payable, and upon this declaration, the same shall become immediately due and payable.
If an event of default specified in the fourth bullet point above occurs with respect to us and is continuing, the entire principal amount of, and accrued interest, if any, on each series of senior debt securities then outstanding shall become immediately due and payable.
Unless otherwise specified in the prospectus supplement relating to a series of senior debt securities originally issued at a discount, the amount due upon acceleration shall include only the original issue price of the senior debt securities, the amount of original issue discount accrued to the date of acceleration and accrued interest, if any.
Upon certain conditions, declarations of acceleration may be rescinded and annulled and past defaults may be waived by the holders of a majority in aggregate principal amount of all the senior debt securities of such series affected by the default, each series voting as a separate class (or, of all the senior debt securities, as the case may be, voting as a single class). Furthermore, prior to a declaration of acceleration and subject to various provisions in the senior indenture, the holders of at least a majority in aggregate principal amount of a series of senior debt securities, by notice to the trustee, may waive an existing default or event of default with respect to such senior debt securities and its consequences, except a default in the payment of principal of or interest on such senior debt securities or in respect of a covenant or provision of the senior indenture which cannot be modified or amended without the consent of the holders of each such senior debt security. Upon any such waiver, such default shall cease to exist, and any event of default with respect to such senior debt securities shall be deemed to have been cured, for every purpose of the senior indenture; but no such waiver shall extend to any subsequent or other default or event of default or impair any right consequent thereto.
The holders of at least a majority in aggregate principal amount of a series of senior debt securities may 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 such senior debt securities. However, the trustee may refuse to follow any direction that conflicts with law or the senior indenture, that may involve the trustee in personal liability, or that the trustee determines in good faith may be unduly prejudicial to the rights of holders of such series of senior debt securities not joining in the giving of such direction and may take any other action it deems proper that is not inconsistent with any such direction received from holders of such series of senior debt securities. A holder may not pursue any remedy with respect to the senior indenture or any series of senior debt securities unless:
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the holder gives the trustee written notice of a continuing event of default;
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the holders of at least 25% in aggregate principal amount of such series of senior debt securities make a written request to the trustee to pursue the remedy in respect of such event of default;
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the requesting holder or holders offer the trustee indemnity satisfactory to the trustee against any costs, liability or expense;
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the trustee does not comply with the request within 60 days after receipt of the request and the offer of indemnity; and
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during such 60-day period, the holders of a majority in aggregate principal amount of such series of senior debt securities do not give the trustee a direction that is inconsistent with the request.
These limitations, however, do not apply to the right of any holder of a senior debt security to receive payment of the principal of and interest on such senior debt security in accordance with the terms of such debt security, or to bring suit for the enforcement of any such payment in accordance with the terms of such debt security, on or after the due date for the senior debt securities, which right shall not be impaired or affected without the consent of the holder.
The senior indenture requires certain of our officers to certify, on or before a fixed date in each year in which any senior debt security is outstanding, as to their knowledge of our compliance with all conditions and covenants under the senior indenture.
Satisfaction and Discharge. We can satisfy and discharge our obligations to holders of any series of debt securities if:
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we pay or cause to be paid, as and when due and payable, the principal of and any interest on all senior debt securities of such series outstanding under the senior indenture; or
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all senior debt securities of such series have become due and payable or will become due and payable within one year (or are to be called for redemption within one year) and we deposit in trust a combination of cash and U.S. government or U.S. government agency obligations that will generate enough cash to make interest, principal and any other payments on the debt securities of that series on their various due dates.
Under current U.S. federal income tax law, the deposit and our legal release from the debt securities would be treated as though we took back your debt securities and gave you your share of the cash and debt securities or bonds deposited in trust. In that event, you could recognize gain or loss on the debt securities you give back to us. Purchasers of the debt securities should consult their own advisers with respect to the tax consequences to them of such deposit and discharge, including the applicability and effect of tax laws other than the U.S. federal income tax law.
Defeasance. Unless the applicable prospectus supplement provides otherwise, the following discussion of legal defeasance and discharge and covenant defeasance will apply to any series of debt securities issued under the indentures.
Legal Defeasance. We can legally release ourselves from any payment or other obligations on the debt securities of any series (called “legal defeasance”) if certain conditions are met, including the following:
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We deposit in trust for your benefit and the benefit of all other direct holders of the debt securities of the same series a combination of cash and U.S. government or U.S. government agency obligations that will generate enough cash to make interest, principal and any other payments on the debt securities of that series on their various due dates.
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There is a change in current U.S. federal income tax law or an IRS ruling that lets us make the above deposit without causing you to be taxed on the debt securities any differently than if we did not make the deposit and instead repaid the debt securities ourselves when due. Under current U.S. federal income tax law, the deposit and our legal release from the debt securities would be treated as though we took back your debt securities and gave you your share of the cash and debt securities or bonds deposited in trust. In that event, you could recognize gain or loss on the debt securities you give back to us.
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We deliver to the trustee a legal opinion of our counsel confirming the tax law change or ruling described above.
If we ever did accomplish legal defeasance, as described above, you would have to rely solely on the trust deposit for repayment of the debt securities. You could not look to us for repayment in the event of any shortfall.
Covenant Defeasance. Without any change of current U.S. federal tax law, we can make the same type of deposit described above and be released from some of the covenants in the debt securities (called “covenant defeasance”). In that event, you would lose the protection of those covenants but would gain the protection of having money and securities set aside in trust to repay the debt securities. In order to achieve covenant defeasance, we must do the following (among other things):
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We must deposit in trust for your benefit and the benefit of all other direct holders of the debt securities of the same series a combination of cash and U.S. government or U.S. government agency obligations that will generate enough cash to make interest, principal and any other payments on the debt securities of that series on their various due dates.
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We must deliver to the trustee a legal opinion of our counsel confirming that under current U.S. federal income tax law we may make the above deposit without causing you to be taxed on the debt securities any differently than if we did not make the deposit and instead repaid the debt securities ourselves when due.
If we accomplish covenant defeasance, you can still look to us for repayment of the debt securities if there were a shortfall in the trust deposit. In fact, if one of the events of default occurred (such as our bankruptcy) and the debt securities become immediately due and payable, there may be such a shortfall. Depending on the events causing the default, you may not be able to obtain payment of the shortfall.
Modification and Waiver. We and the trustee may amend or supplement the senior indenture or the senior debt securities without the consent of any holder:
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to convey, transfer, assign, mortgage or pledge any assets as security for the senior debt securities of one or more series;
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to evidence the succession of a corporation to us, and the assumption by such successor of our covenants, agreements and obligations under the senior indenture;
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to cure any ambiguity, defect or inconsistency in the senior indenture or in any supplemental indenture or to conform the senior indenture or the senior debt securities to the description of senior debt securities of such series set forth in this prospectus or a prospectus supplement;
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to evidence and provide for the acceptance of appointment under the senior indenture by a successor trustee, or to make such changes as shall be necessary to provide for or facilitate the administration of the trusts in the senior indenture by more than one trustee;
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to provide for or add guarantors with respect to the senior debt securities of any series;
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to establish the form or forms or terms of the senior debt securities as permitted by the senior indenture;
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to add to, delete from or revise the conditions, limitations and restrictions on the authorized amount, terms, purposes of issue, authentication and delivery of any series of senior debt securities;
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to add to our covenants such new covenants, restrictions, conditions or provisions for the protection of the holders, and to make the occurrence, or the occurrence and continuance, of a default in any such additional covenants, restrictions, conditions or provisions an event of default;
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to make any change to the senior debt securities of any series so long as no senior debt securities of such series are outstanding; or
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to make any change that does not adversely affect the rights of any holder in any material respect.
Other amendments and modifications of the senior indenture or the senior debt securities issued may be made, and our compliance with any provision of the senior indenture with respect to any series of senior debt securities may be waived, with the consent of the holders of not less than a majority of the aggregate principal amount of the outstanding senior debt securities of all series affected by the amendment or modification (voting as one class); provided, however, that each affected holder must consent to any modification, amendment or waiver that:
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extends the stated maturity of the principal of, or any installment of interest on, any senior debt securities of such series;
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reduces the principal amount of, or interest on, any senior debt securities of such series;
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changes the place or currency of payment of principal of, or interest on, any senior debt securities of such series;
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reduces the principal amount of original issue discount securities payable upon acceleration of maturity or the amount provable in bankruptcy;
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changes the provisions for calculating the optional redemption price, including the definitions relating thereto;
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changes the provisions relating to the waiver of past defaults or changes or impairs the right of holders to receive payment or to institute suit for the enforcement of any payment of any senior debt securities of such series on or after the due date therefor;
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reduces the above-stated percentage of outstanding senior debt securities of such series the consent of whose holders is necessary to modify or amend or to waive certain provisions of or defaults under the senior indenture;
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waives a default in the payment of principal of or interest on the senior debt securities;
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adversely affects the rights of such holder under any mandatory redemption or repurchase provision or any right of redemption or repurchase at the option of such holder; or
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modifies any of the provisions of these restrictions on amendments and modifications, except to increase any required percentage or to provide that certain other provisions cannot be modified or waived without the consent of the holder of each senior debt security of such series affected by the modification.
It shall not be necessary for the consent of the holders under this section of the senior indenture to approve the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such consent approves the substance thereof. After an amendment, supplement or waiver under this section of the senior indenture becomes effective, the trustee must give to the holders affected thereby certain notice briefly describing the amendment, supplement or waiver. We will mail supplemental indentures to holders upon request. Any failure by the trustee to give such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amendment, supplemental indenture or waiver.
No Personal Liability of Incorporators, Shareholders, Officers, Directors. The senior indenture provides that no recourse shall be had under or upon any obligation, covenant or agreement of ours in the senior indenture or any supplemental indenture, or in any of the senior debt securities or because of the creation of any indebtedness represented thereby, against any of our incorporators, shareholders, officers or directors, past, present or future, or of any predecessor or successor entity thereof under any law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise. Each holder, by accepting the senior debt securities, waives and releases all such liability.
Concerning the Trustee. The senior indenture provides that, except during the continuance of an event of default, the trustee will not be liable, except for the performance of such duties as are specifically set forth in the senior indenture. If an event of default has occurred and is continuing, the trustee will exercise such rights and powers vested in it under the senior indenture and will use the same degree of care and skill in its exercise as a prudent person would exercise under the circumstances in the conduct of such person’s own affairs.
The senior indenture and the provisions of the Trust Indenture Act incorporated by reference therein contain limitations on the rights of the trustee thereunder, should it become a creditor of ours or any of our subsidiaries, to obtain payment of claims in certain cases or to realize on certain property received by it in respect of any such claims, as security or otherwise. The trustee is permitted to engage in other transactions, provided that if it acquires any conflicting interest (as defined in the Trust Indenture Act), it must eliminate such conflict or resign.
We may have normal banking relationships with the senior trustee in the ordinary course of business.
Unclaimed Funds. All funds deposited with the trustee or any paying agent for the payment of principal, premium, interest or additional amounts in respect of the senior debt securities that remain unclaimed for two years after the date upon which such principal, premium or interest became due and payable will be repaid to us. Thereafter, any right of any holder of senior debt securities to such funds shall be enforceable only against us, and the trustee and paying agents will have no liability therefor.
Governing Law. The senior indenture and the debt securities will be governed by, and construed in accordance with, the internal laws of the State of New York.
Certain Terms of the Subordinated Debt Securities
Other than the terms of the subordinated indenture and subordinated debt securities relating to subordination, or otherwise as described in the prospectus supplement relating to a particular series of subordinated debt securities, the terms of the subordinated indenture and subordinated debt securities are identical in all material respects to the terms of the senior indenture and senior debt securities. Additional or different subordination terms may be specified in the prospectus supplement applicable to a particular series.
Subordination. The indebtedness evidenced by the subordinated debt securities is subordinate to the prior payment in full of all our Senior Indebtedness, as defined in the subordinated indenture. During the continuance beyond any applicable grace period of any default in the payment of principal, premium, interest or any other payment due on any of our Senior Indebtedness, we may not make any payment of principal of, or interest on the subordinated debt securities (except for certain sinking fund payments). In
addition, upon any payment or distribution of our assets upon any dissolution, winding up, liquidation or reorganization, the payment of the principal of and interest on the subordinated debt securities will be subordinated to the extent provided in the subordinated indenture in right of payment to the prior payment in full of all our Senior Indebtedness. Because of this subordination, if we dissolve or otherwise liquidate, holders of our subordinated debt securities may receive less, ratably, than holders of our Senior Indebtedness. The subordination provisions do not prevent the occurrence of an event of default under the subordinated indenture.
The term “Senior Indebtedness” of a person means with respect to such person the principal of, premium, if any, interest on, and any other payment due pursuant to any of the following, whether outstanding on the date of the subordinated indenture or incurred by that person in the future:
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all of the indebtedness of that person for money borrowed;
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all of the indebtedness of that person evidenced by notes, debentures, bonds or other securities sold by that person for money;
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all of the lease obligations which are capitalized on the books of that person in accordance with generally accepted accounting principles;
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all indebtedness of others of the kinds described in the first two bullet points above and all lease obligations of others of the kind described in the third bullet point above that the person, in any manner, assumes or guarantees or that the person in effect guarantees through an agreement to purchase, whether that agreement is contingent or otherwise; and
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all renewals, extensions or refundings of indebtedness of the kinds described in the first, second or fourth bullet point above and all renewals or extensions of leases of the kinds described in the third or fourth bullet point above;
unless, in the case of any particular indebtedness, renewal, extension or refunding, the instrument creating or evidencing it or the assumption or guarantee relating to it expressly provides that such indebtedness, renewal, extension or refunding is not superior in right of payment to the subordinated debt securities. Our senior debt securities constitute Senior Indebtedness for purposes of the subordinated debt indenture.
DESCRIPTION OF COMMON STOCK
General
The following is a description of the material terms and provisions of our common stock. It may not contain all the information that is important to you. You can access complete information by referring to our certificate of incorporation and bylaws.
Under our certificate of incorporation, we have authority to issue 10,000,000 shares of common stock, no par value per share. As of June 30, 2015, 7,240,704 shares of common stock were issued and outstanding. All shares of common stock will, when issued, be duly authorized, fully paid and nonassessable. Thus, the full price for the outstanding shares of common stock will have been paid at issuance and any holder of our common stock will not be later required to pay us any additional money for such common stock.
We have reserved an additional 304,640 shares of our common stock for issuance upon exercise of existing warrants. We have also reserved 984,568 shares of our common stock for issuance in connection with stock awards granted under our stock incentive plans, 517,531 of which have been issued, 185,498 option shares were outstanding and 467,037 shares were available for issuance as of June 30, 2015.
Voting
Each holder of our common stock is entitled to one vote for each share on all matters submitted to the shareholders, except as otherwise required by law and subject to the rights and preferences of the holders of any outstanding shares of our preferred stock. Holders of our common stock are not entitled to cumulative voting in the election of directors.
Dividends and other distributions
Subject to certain regulatory restrictions discussed in this prospectus and to the rights of holders of any preferred stock that we may issue, holders of common stock are entitled to receive dividends from legally available funds, when, as and if declared by our board of directors. If we liquidate or dissolve, holders of common stock are entitled to share ratably in our assets once our debts and liabilities (including all deposits in the Bank and interest accrued thereon) and any liquidation preference owed to any holders of then-outstanding preferred stock are paid. Holders of our Series C preferred stock have rights that are senior to our common stock. We must make payments on our Series C preferred stock before any dividends can be paid to our common stock. See “Description of Our Preferred Stock — Series C Preferred Stock — Dividends.”
Preemptive Rights
The terms of our common stock do not entitle our shareholders to preemptive rights with respect to any shares of capital stock which may be issued. However, the Company entered into a securities purchase agreement with an institutional investor in connection with its purchase of 370,000 shares of our common stock on September 30, 2013. The securities purchase agreement provides, among other things, that this investor shall have a preemptive right to maintain its percentage ownership of the Company’s issued and outstanding stock with respect to public or private offerings of our common stock for a three year period expiring September 30, 2016.
Transfer Agent and Registrar
The transfer agent for our common stock is Computershare.
Anti-Takeover Effect of Governing Documents and Applicable Law
Provisions of Governing Documents. Certain provisions of our certificate of incorporation and bylaws highlighted below may have anti-takeover effects and may delay, prevent or make more difficult unsolicited tender offers or takeover attempts that a shareholder may consider to be in his or her best interest, including
those attempts that might result in a premium over the market price for the shares held by shareholders. These provisions may also have the effect of making it more difficult for third parties to cause the replacement of our current management. Among other things, our certificate of incorporation and bylaws:
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restrict the exercise of voting rights by “interested shareholders,” as described below, for the amendment of certain provisions of our certificate of incorporation and by-laws;
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prohibit shareholder action by written consent in lieu of a meeting;
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prohibit business combinations with an “interested shareholder,” as described below, for five years following an acquisition of shares by such “interested shareholder,” unless approved by our board of directors;
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enable our board of directors to issue “blank check” preferred stock up to the authorized amount, with such preferences, limitations and relative rights, including voting rights, as may be determined from time to time by our board of directors;
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prohibit the acquisition of 10% or more of our outstanding voting stock unless approved by at least 2/3 of our directors then in office;
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prohibit any person from making an offer to acquire 10% or more of our outstanding voting stock without prior notice to our board, and in case the board has disapproved such offer within 15 days following such notice;
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allow our board of directors, when considering any tender or exchange offer for our stock, or proposal to merge, to take into account factors other than the interests of our shareholders, such as long-term and short-term interests of the corporation, and the interests of our employees, customers, creditors, suppliers, and our surrounding community;
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provide for the limitation of liability and indemnification of our officers and directors;
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require a 60% vote of our shareholders to repeal the sections of our certificate of incorporation addressing limitation of liability and indemnification of our officers and directors;
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prohibit the removal of directors other than for cause, or by a vote of at least 2/3 of our directors then in office, or by an affirmative vote of at least 80% of the voting power of our outstanding voting stock;
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enable our board of directors to increase, between annual meetings, the number of persons serving as directors and to fill the vacancies created as a result of the increase by a majority vote of the directors present at the meeting;
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provide that only our Chairman, our President or a majority of our board of directors have the ability to call a special meeting of our shareholders;
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do not provide for cumulative voting rights (therefore allowing the holders of a majority of the shares of common stock entitled to vote in any election of directors to elect all of the directors standing for election, if they should so choose); and
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establish an advance notice procedure with regard to business to be brought before an annual or special meeting of shareholders and with regard to the nomination of candidates for election as directors, other than by or at the direction of our board of directors.
The amendment of certain provisions of our certificate of incorporation, including, without limitation, provisions governing certain business combinations, special meetings of shareholders, director liability, removal of directors, nominations for directors, action by shareholders, approval for certain acquisitions and offers to acquire voting stock and consideration for merger consolidation or other offers must be approved by the affirmative vote of the holders of not less than sixty percent (60%) of the issued and outstanding shares of our capital stock entitled to vote thereon. In case we have an “interested shareholder,” the affirmative vote of not less than sixty percent (60%) of the issued and outstanding shares of our capital stock entitled to vote thereon other than shares held by the “interested shareholder” is required. An “interested shareholder” is defined in our certificate of incorporation as any person who
beneficially owns ten percent or more of the voting power of our outstanding voting stock, or who is an affiliate or associate of ours (as defined under Connecticut corporate law) and has beneficially owned ten percent or more of the voting power of our outstanding voting stock at any time within the five years immediately preceding such vote, or any successor or transferee of such shares held by an “interested shareholder” at any time within such five-year period.
Our bylaws may be altered, amended, added to or repealed either by the affirmative vote of the holders of a majority of stock entitled to vote thereon or by the affirmative vote of a majority of our board of directors. However, the affirmative vote of sixty percent (60%) of the issued and outstanding shares entitled to vote thereon is required (i) by the terms of our bylaws, to amend certain bylaw provisions, including those dealing with shareholders’ meetings (including annual meetings), shareholder nomination of director candidates, removal of directors and filling of vacancies on our board of directors; and (ii) by the terms of our certificate of incorporation, for any shareholder action effecting an amendment or repeal of or an adoption of a provision inconsistent with our Bylaws. In all such cases, if there is an “interested shareholder,” as described above, the sixty percent (60%) vote must include the affirmative vote of the issued and outstanding shares entitled to vote thereon held by shareholders other than the interested shareholder.
Provisions of Applicable Law. The corporate laws and regulations applicable to us enable our board of directors to issue, from time to time and at its discretion, but subject to the rules of any applicable securities exchange, any authorized but unissued shares of our common stock or preferred stock. The ability of our board of directors to issue authorized but unissued shares of our common stock or preferred stock at its sole discretion may enable our board of directors to sell shares to individuals or groups who the board of directors perceives as friendly with management, which may make more difficult unsolicited attempts to obtain control of our organization. In addition, the ability of our board of directors to issue authorized but unissued shares of our capital stock at its sole discretion could deprive the shareholders of opportunities to sell their shares of common stock or preferred stock for prices higher than prevailing market prices.
Although our bylaws do not give our board of directors any power to approve or disapprove shareholder nominations for the election of directors or proposals for action, they may have the effect of precluding a contest for the election of directors or the consideration of shareholder proposals if the established procedures are 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.
Under Connecticut banking law, no person may acquire beneficial ownership of ten percent or more of any class of voting securities of a Connecticut chartered bank, or any bank holding company of such a bank, without prior notification of, and lack of disapproval by the Connecticut Department of Banking. The Connecticut Department of Banking will disapprove the acquisition if the bank has been in existence for less than five years, or if a holding company, if the subsidiary banks of which have been in existence for less than five years, unless the Connecticut Department of Banking waives this five year restriction, or if the acquisition would result in the acquirer controlling 30% or more of the total amount of deposits in insured depository institutions in Connecticut. Similar restrictions apply to any person who holds ten percent or more of any such class and desires to increase its holdings to 25% or more of such class.
The prior approval of the Federal Reserve Board under the Change in Bank Control Act of 1978 is required before any person could acquire “control” of the Company. “Control” is presumed to exist where the acquiring party will have voting control of at least ten percent of our common stock and if (1) we have a class of voting securities registered under Section 12 of the 1934 Act or (2) the acquiring party would be the largest holder of a class of voting securities of the Company immediately after the transaction.
The prior approval of the Federal Reserve Board under the Bank Holding Company Act of 1956 is required before any bank holding company could acquire five percent or more of our common stock and before any other company could acquire “control” of us. Under Federal Reserve Board policy, an investor can own less than 25% of our outstanding voting shares and obtain a board seat on our board of directors without being deemed to have acquired “control” of us. In addition, an investor can own up to 33% of our total equity (as opposed to less than 25%) without being deemed to have acquired “control,” provided that the investment does not include ownership of 15% or more of any class of voting securities.
DESCRIPTION OF PREFERRED STOCK
The following summary contains a description of the general terms and provisions of the preferred stock that we may issue. Other terms of any series of preferred stock will be described in the prospectus supplement relating to that series of preferred stock. The terms of any series of preferred stock may differ from the terms described below. Certain provisions of the preferred stock described below and in any prospectus supplement are not complete. You should refer to our certificate of incorporation, as amended, and by-laws, and the certificate of amendment which will be filed with the SEC in connection with the offering of a particular series of preferred stock.
General
Our certificate of incorporation, as amended, permits us to issue one or more series of preferred stock and authorize our board of directors to designate the preferences, limitations and relative rights of any such series of preferred stock, in each case, without any further action by our shareholders. Each share of a series of preferred stock will have the same relative rights as, and be identical in all respects with, all the other shares of the same series. Preferred stock may have voting rights, subject to applicable law and determination at issuance of our board of directors. While the terms of preferred stock may vary from series to series, holders of our common stock should assume that all shares of preferred stock will be senior to our common stock in respect of distributions and on liquidation.
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.
As of the date of this prospectus, one series of preferred stock is authorized, issued and outstanding. We issued 10,980 shares of our Series C preferred stock in connection with our participation in the Department of the Treasury’s Small Business Lending Fund program. Our Series A preferred stock and Series B preferred stock have been redeemed and cancelled.
Series C Preferred Stock
Voting Rights. The holders of the Series C preferred stock do not have voting rights other than with respect to certain matters relating to the rights of holders of Series C preferred stock, on certain corporate transactions and, if applicable, the election of additional directors described below.
In addition to any other vote or consent required by law or by our certificate of incorporation, the written consent of the Treasury, if the Treasury holds any shares of Series C preferred stock, or the holders of a majority of the outstanding shares of Series C preferred stock, voting as a single class, if the Treasury does not hold any shares of Series C preferred stock, is required to:
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amend our certificate of incorporation or the Certificate of Designation for the Series C preferred stock to authorize or create or increase the authorized amount of, or any issuance of, any shares of, or any securities convertible into or exchangeable or exercisable for shares of, any class or series of stock ranking senior to the Series C preferred stock with respect to the payment of dividends and/or the distribution of assets on any liquidation, dissolution or winding up by or of us;
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amend our certificate of incorporation or the Certificate of Designation for the Series C preferred stock so as to adversely affect the rights, preferences, privileges or voting powers of the Series C preferred stock;
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consummate a binding share exchange or reclassification involving the Series C preferred stock or a merger or consolidation with another entity, unless (1) the shares of Series C preferred stock remain outstanding or, in the case of a merger or consolidation in which we are not the surviving or resulting entity, are converted into or exchanged for preference securities of the surviving or
resulting entity or its ultimate parent, and (2) the shares of Series C preferred stock remaining outstanding or such preference securities, as the case may be, have such rights, preferences, privileges and voting powers, and limitations and restrictions, that are the same as the rights, preferences, privileges and voting powers, and limitations and restrictions of the Series C preferred stock immediately prior to consummation of the transaction, taken as a whole;
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sell all, substantially all or any material portion of, our assets, if the Series C preferred stock will not be redeemed in full contemporaneously with the consummation of such sale; or
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consummate a Holding Company Transaction (as defined below), unless as a result of the Holding Company Transaction each share of Series C preferred stock will be converted into or exchanged for one share with an equal liquidation preference of preference securities of us or the acquirer, or the Holding Company preferred stock. Any such Holding Company preferred stock must entitle its holders to dividends from the date of issuance of such stock on terms that are equivalent to the terms of the Series C preferred stock, and must have such other rights, preferences, privileges and voting powers, and limitations and restrictions that are the same as the rights, preferences, privileges and voting powers, and limitations and restrictions of the Series C preferred stock immediately prior to such conversion or exchange, taken as a whole;
provided, however, that (1) any increase in the amount of our authorized shares of preferred stock, and (2) the creation and issuance, or an increase in the authorized or issued amount, of any other series of preferred stock, or any securities convertible into or exchangeable or exercisable for any other series of preferred stock, ranking equally with and/or junior to the Series C preferred stock with respect to the payment of dividends, whether such dividends are cumulative or non-cumulative, and the distribution of assets upon our liquidation, dissolution or winding up, will not be deemed to adversely affect the rights, preferences, privileges or voting powers of the Series C preferred stock and will not require the vote or consent of the holders of the Series C preferred stock.
A “Holding Company Transaction” means the occurrence of (a) any transaction that results in a person or group (1) becoming the direct or indirect ultimate beneficial owner of our common equity representing more than 50% of the voting power of the outstanding shares of our common stock or (2) being otherwise required to consolidate for GAAP purposes, or (b) any consolidation or merger of us or similar transaction or any sale, lease or other transfer in one transaction or a series of related transactions of all or substantially all of our consolidated assets to any person other than one of our subsidiaries; provided that, in the case of either clause (a) or (b), we or the acquiror is or becomes a bank holding company or savings and loan holding company.
To the extent holders of the Series C preferred stock are entitled to vote, holders of shares of the Series C preferred stock will be entitled to one for each share then held.
The voting provisions described above will not apply if, at or prior to the time when the vote or consent of the holders of the Series C preferred stock would otherwise be required, all outstanding shares of the Series C preferred stock have been redeemed by us or called for redemption upon proper notice and sufficient funds have been deposited by us in trust for the redemption.
Dividends. The Series C preferred stock is entitled to receive non-cumulative dividends, payable quarterly, on each January 1, April 1, July 1 and October 1. The dividend rate is fixed at 1%. After four and one half years from issuance, the dividend rate will increase to 9%.
Dividends on the Series C preferred stock are non-cumulative. If for any reason our board of directors does not declare a dividend on the Series C preferred stock for a particular dividend period, then the holders of the Series C preferred stock will have no right to receive any dividend for that dividend period, and we will have no obligation to pay a dividend for that dividend period. We must, however, within five calendar days, deliver to the holders of the Series C preferred stock a written notice executed by our Chief Executive Officer and Chief Financial Officer stating our board of directors’ rationale for not declaring dividends. Our failure to pay a dividend on the Series C preferred stock also will restrict our ability to pay dividends on and repurchase other classes and series of our capital stock, including our common stock.
When dividends have not been declared and paid in full on the Series C preferred stock for an aggregate of four or more dividend periods, and during that time we were not subject to a regulatory
determination that prohibits the declaration and payment of dividends, we must, within five calendar days of each missed payment, deliver to the holders of the Series C preferred stock a certificate executed by at least a majority of the members of our board of directors stating that it used its best efforts to declare and pay such dividends in a manner consistent with safe and sound banking practices and the directors’ fiduciary obligations. In addition, (i) our failure to pay dividends on the Series C preferred stock for five or more dividend periods, whether consecutive or not, will give the holders of the Series C preferred stock the right to appoint a non-voting observer on our board of directors, and (ii) our failure to pay dividends on the Series C preferred stock for six or more dividend periods, whether consecutive or not, and if the aggregate liquidation preference of the Series C preferred shares then outstanding is of $25,000,000 or more, will give the holders of the Series C preferred stock the right to elect two directors. However, given that the liquidation preference for the Series C preferred stock is less than $25,000,000, it is unlikely that the foregoing provisions described in the last sentence would be applicable.
No Sinking Fund. The Series C preferred stock is not subject to any sinking fund.
Priority of Dividends. So long as any share of the Series C preferred stock remains outstanding, we may declare and pay dividends on our common stock only if full dividends on all outstanding shares of Series C preferred stock for the most recently completed dividend period have been or are contemporaneously declared and paid. If a dividend is not declared and paid in full on the Series C preferred stock for any dividend period, then from the last day of that dividend period until the last day of the third dividend period immediately following it, no dividend or distribution may be declared or paid on our common stock.
Restrictions on Repurchases. So long as any share of the Series C preferred stock remains outstanding, we may repurchase or redeem shares of our common stock, only if dividends on all outstanding shares of Series C preferred stock for the most recently completed dividend period have been or are contemporaneously declared and paid (or have been declared and a sum sufficient for payment has been set aside for the benefit of the holders of the Series C preferred stock as of the applicable record date). If a dividend is not declared and paid in full on the Series C preferred stock for any dividend period, then from the last day of that dividend period until the last day of the third dividend period immediately following it, no redemptions or repurchases of our common stock may be carried out, except in certain limited cases.
Liquidation Rights. In the event of any voluntary or involuntary liquidation, dissolution or winding up of our affairs, holders of the Series C preferred stock will be entitled to receive for each share of Series C preferred stock, out of our assets proceeds available for distribution to our shareholders, subject to any rights of our creditors, before any distribution of assets or proceeds is made to or set aside for the holders of our common stock payment of an amount equal to the sum of (1) the $1,000 liquidation preference amount per share and (2) the amount of any accrued and unpaid dividends on the Series C preferred stock.
For purposes of the liquidation rights of the Series C preferred stock, neither a merger nor consolidation of us with another entity nor a sale, lease or exchange of all or substantially all of our assets will constitute a liquidation, dissolution or winding up of our affairs.
Redemption and Repurchases. The Series C preferred stock may be redeemed at any time at our option, at a redemption price of 100% of the liquidation amount plus accrued but unpaid dividends to the date of redemption for the current period, regardless of whether such dividends have been declared for that period, all subject to the approval of the federal banking regulator.
To exercise the optional redemption right, we must give notice of the redemption to the holders of record of the Series C preferred stock, not less than 30 days and not more than 60 days before the date of redemption. In the case of a partial redemption of the Series C preferred stock, the shares to be redeemed will be selected either pro rata or in such other manner as our board of directors or a committee of the board of directors determines to be fair and equitable, provided that shares representing at least 25% of the aggregate liquidation amount of the Series C preferred stock are redeemed.
Shares of Series C preferred stock that we redeem, repurchase or otherwise acquire will revert to authorized but unissued shares of preferred stock, which may then be reissued by us as any series of preferred stock other than the Series C preferred stock.
Conversion. Holders of the Series C preferred stock have no right to exchange or convert their shares into any other securities.
Registration Rights. As part of the terms of our participation in the Treasury’s Small Business Lending Fund Program, or SBLF, we agreed to provide the holders of our Series C preferred stock with the right to demand that we file a registration statement or request that their shares be covered by a registration statement that we are otherwise filing. The Treasury exercised its piggyback registration rights in connection with our initial public offering.
DESCRIPTION OF DEPOSITARY SHARES
General
We may, at our option, elect to offer fractional shares of preferred stock, which we call depositary shares, rather than full shares of preferred stock. If we do, we will issue to the public receipts, called depositary receipts, for depositary shares, each of which will represent a fraction, to be described in the applicable prospectus supplement, of a share of a particular series of preferred stock. Unless otherwise provided in the prospectus supplement, each owner of a depositary share will be entitled, in proportion to the applicable fractional interest in a share of preferred stock represented by the depositary share, to all the rights and preferences of the preferred stock represented by the depositary share. Those rights include dividend, voting, redemption, conversion and liquidation rights.
The shares of preferred stock underlying the depositary shares will be deposited with a bank or trust company selected by us to act as depositary, under a depositary 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 shares will be evidenced by depositary receipts issued pursuant to the depositary agreement. Holders of depositary receipts agree to be bound by the depositary agreement, which requires holders to take certain actions such as filing proof of residence and paying certain charges.
The summary of terms of the depositary shares contained in this prospectus is not complete. You should refer to the forms of the depositary agreement, our certificate of incorporation and the certificate of amendment for the applicable series of preferred stock that are, or will be, filed with the SEC.
Dividends and Other Distributions
The depositary will distribute all cash dividends or other cash distributions, if any, received in respect of the preferred stock underlying the depositary shares to the record holders of depositary shares in proportion to the numbers 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 the preferred stock.
If there is a distribution other than in cash, the depositary will distribute property received by it to the record holders of depositary shares, unless the depositary determines that it is not feasible to make the distribution. If this occurs, the depositary may, with our approval, adopt another method for the distribution, including selling the property and distributing the net proceeds from the sale to the holders.
Conversion and Exchange
Depositary shares will not themselves be convertible into common stock or any other securities or property of Bankwell. However, if the underlying preferred stock is convertible, holders of depositary shares may surrender them to the depositary with written instructions to convert the preferred stock represented by their depositary shares into whole shares of common stock, other shares of our preferred stock or other securities, as applicable. Upon receipt of these instructions and any amounts payable in connection with a conversion, we will convert the preferred stock using the same procedures as those provided for delivery of preferred stock. If a holder of depositary shares converts only part of its depositary shares, the depositary will issue a new depositary receipt for any depositary shares not converted. We will not issue fractional shares of common stock upon conversion. The terms and conditions for the treatment of fractional shares of common stock upon conversion will be set forth in the applicable prospectus supplement relating thereto.
Liquidation Preference
If a series of preferred stock underlying the depositary shares has a liquidation preference, in the event of the voluntary or involuntary liquidation, dissolution or winding up of Bankwell, holders of depositary shares will be entitled to receive the fraction of the liquidation preference accorded each share of the applicable series of preferred stock, as set forth in the applicable prospectus supplement.
Withdrawal of Stock
Unless the related depositary shares have been previously called for redemption, upon surrender of the depositary receipts at the office of the depositary, the holder of the depositary shares will be entitled to delivery, at the office of the depositary to or upon his or her order, of the number of whole shares of the preferred stock and any money or other property represented by the depositary shares. If the depositary receipts delivered by the holder evidence a number of depositary shares in excess of the number of depositary shares representing the number of whole shares of preferred stock to be withdrawn, the depositary will deliver to the holder at the same time a new depositary receipt evidencing the excess number of depositary shares. In no event will the depositary deliver fractional shares of preferred stock upon surrender of depositary receipts. Holders of preferred stock thus withdrawn may not thereafter deposit those shares under the depositary agreement or receive depositary receipts evidencing depositary shares therefor.
Redemption of Depositary Shares
Whenever we redeem shares of preferred stock held by the depositary, the depositary will redeem as of the same redemption date the number of depositary shares representing shares of the preferred stock so redeemed, so long as we have paid in full to the depositary the redemption price of the preferred stock to be redeemed plus an amount equal to any accumulated and unpaid dividends on the preferred stock to the date fixed for redemption. The redemption price per depositary share will be equal to the redemption price and any other amounts per share payable on the preferred stock multiplied by the fraction of a share of preferred stock represented by one depositary share. If less than all the depositary shares are to be redeemed, the depositary shares to be redeemed will be selected by lot or pro rata or by any other equitable method as may be determined by the depositary.
After the date fixed for redemption, depositary shares called for redemption will no longer be deemed to be outstanding and all rights of the holders of depositary shares will cease, except the right to receive the moneys payable upon redemption and any money or other property to which the holders of the depositary shares were entitled upon redemption upon surrender to the depositary of the depositary receipts evidencing the depositary shares.
Voting the Preferred Stock
Upon receipt of notice of any meeting at which the holders of the 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 relating to that preferred stock. The record date for the depositary receipts relating to the preferred stock will be the same date as the record date for the preferred stock. Each record holder of the depositary shares on the record date will be entitled to instruct the depositary as to the exercise of the voting rights pertaining to the number of shares of preferred stock represented by that holder’s depositary shares. The depositary will endeavor, insofar as practicable, to vote the number of shares of preferred stock represented by the depositary shares in accordance with those instructions, and we will agree to take all action that may be deemed necessary by the depositary in order to enable the depositary to do so. The depositary will not vote any shares of preferred stock except to the extent it receives specific instructions from the holders of depositary shares representing that number of shares of preferred stock.
Charges of Depositary
We will pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangements. We will pay charges of the depositary in connection with the initial deposit of the preferred stock and any redemption of the preferred stock. Holders of depositary receipts will pay transfer, income and other taxes and governmental charges and such other charges as are expressly provided in the depositary agreement to be for their accounts. If these charges have not been paid by the holders of depositary receipts, the depositary may refuse to transfer depositary shares, withhold dividends and distributions and sell the depositary shares evidenced by the depositary receipt.
Amendment and Termination of the Depositary Agreement
The form of depositary receipt evidencing the depositary shares and any provision of the depositary agreement may be amended by agreement between us and the depositary. However, any amendment that
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. The depositary agreement may be terminated by the depositary or us only if:
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all outstanding depositary shares have been redeemed; or
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there has been a final distribution of the preferred stock in connection with our dissolution and such distribution has been made to all the holders of depositary shares.
Resignation and Removal of Depositary
The depositary may resign at any time by delivering to us notice of its election to do so, and we may remove the depositary at any time. Any resignation or removal of the depositary will take effect upon our 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 of resignation or removal and must be a bank or trust company having its principal office in the United States and having the requisite combined capital and surplus as set forth in the applicable agreement.
Notices
The depositary will forward to holders of depositary receipts all notices, reports and other communications, including proxy solicitation materials received from us, that are delivered to the depositary and that we are required to furnish to the holders of the 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 preferred stock.
Limitation of Liability
Neither we nor the depositary will be liable if either of us is prevented or delayed by law or any circumstance beyond our control in performing our obligations. Our obligations and those of the depositary will be limited to performance in good faith of our and their duties thereunder. We and the depositary will not be obligated to prosecute or defend any legal proceeding in respect of any depositary shares or preferred stock unless satisfactory indemnity is furnished. We and the depositary may rely upon written advice of counsel or accountants, on information provided by persons presenting preferred stock for deposit, holders of depositary receipts or other persons believed to be competent to give such information and on documents believed to be genuine and to have been signed or presented by the proper party or parties.
DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS
We may issue stock purchase contracts, including contracts obligating holders to purchase from or sell to us, and obligating us to sell to or purchase from the holders, a specified number of shares of our common stock, preferred stock or depositary shares at a future date or dates, which we refer to in this prospectus as stock purchase contracts. The price per share of common stock, preferred stock or depositary shares and the number of shares of each may be fixed at the time the stock purchase contracts are issued or may be determined by reference to a specific formula set forth in the stock purchase contracts. The stock purchase contracts may be issued separately or as part of units, often known as stock purchase units, consisting of one or more stock purchase contracts and beneficial interests in debt securities or any other securities described in the applicable prospectus supplement or any combination of the foregoing, securing the holders’ obligations to purchase the common stock, preferred stock or depositary shares under the stock purchase contracts.
The stock purchase contracts may require us to make periodic payments to the holders of the stock purchase units or vice versa, and these payments may be unsecured or prefunded on some basis. The stock purchase contracts may require holders to secure their obligations under those contracts in a specified manner, including without limitation by pledging their interest in another stock purchase contract.
The applicable prospectus supplement will describe the terms of the stock purchase contracts and stock purchase units, including, if applicable, collateral or depositary arrangements.
DESCRIPTION OF WARRANTS
We may issue warrants to purchase debt securities, preferred stock, depositary shares or common stock. We may offer warrants separately or together with one or more additional warrants, debt securities, preferred stock, depositary shares or common stock, or any combination of those securities in the form of units, as described in the applicable prospectus supplement. If we issue warrants as part of a unit, the accompanying prospectus supplement will specify whether those warrants may be separated from the other securities in the unit prior to the warrants’ expiration date. Below is a description of certain general terms and provisions of the warrants that we may offer. Further terms of the warrants will be described in the prospectus supplement.
The applicable prospectus supplement will describe the following terms of any warrants in respect of which this prospectus is being delivered:
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the specific designation and aggregate number of, and the price at which we will issue, the warrants;
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the currency or currency units in which the offering price, if any, and the exercise price are payable;
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the date on which the right to exercise the warrants will begin and the date on which that right will expire or, if you may not continuously exercise the warrants throughout that period, the specific date or dates on which you may exercise the warrants;
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whether the warrants will be issued in definitive or global form or in any combination of these forms, although, in any case, the form of a warrant included in a unit will correspond to the form of the unit and of any security included in that unit;
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any applicable material U.S. federal income tax consequences;
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the identity of the warrant agent for the warrants and of any other depositaries, execution or paying agents, transfer agents, registrars or other agents;
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the proposed listing, if any, of the warrants or any securities purchasable upon exercise of the warrants on any securities exchange;
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the designation and terms of the equity securities purchasable upon exercise of the warrants;
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the designation, aggregate principal amount, currency and terms of the debt securities that may be purchased upon exercise of the warrants;
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if applicable, the designation and terms of the debt securities, preferred stock, depositary shares or common stock with which the warrants are issued and, the number of warrants issued with each security;
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if applicable, the date from and after which the warrants and the related debt securities, preferred stock, depositary shares or common stock will be separately transferable;
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the number of shares of preferred stock, the number of depositary shares or the number of shares of common stock purchasable upon exercise of a warrant and the price at which those shares may be purchased;
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if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time;
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information with respect to book-entry procedures, if any;
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the antidilution provisions of the warrants, if any;
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any redemption or call provisions;
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whether the warrants are to be sold separately or with other securities as parts of units; and
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any additional terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants.
In connection with previous offerings, we issued 945,789 units to subscribers. Each unit issued in these previous offerings represented one share of common stock and one non-transferable warrant. Each warrant allows a holder to purchase 0.3221 shares of common stock at an exercise price of $14.00 per share. The exercise period for the warrants is from October 1, 2015 through December 1, 2015. None of the warrants may be exercised prior to October 1, 2015. The Company intends to file a prospectus supplement in connection with these securities.
DESCRIPTION OF UNITS
We may issue units consisting of one or more of the other securities described in this prospectus in any combination. Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately, at any time or at any time before a specified date. The applicable prospectus supplement may describe:
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the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately;
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any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units;
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the terms of the unit agreement governing the units; and
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whether the units will be issued in fully registered global form.
This summary of certain general terms of units and any summary description of units in the applicable prospectus supplement do not purport to be complete and are qualified in their entirety by reference to all provisions of the applicable unit agreement and, if applicable, collateral arrangements and depositary arrangements relating to such units. The forms of the unit agreements and other documents relating to a particular issue of units will be filed with the SEC each time we issue units, and you should read those documents for provisions that may be important to you.
FORMS OF SECURITIES
Each debt security, depositary share, stock purchase contract, stock purchase unit, warrant and unit will be represented either by a certificate issued in definitive form to a particular investor or by one or more global securities representing the entire issuance of securities. Unless the applicable prospectus supplement provides otherwise, certificated securities in definitive form and global securities will be issued in registered form. Definitive securities name you or your nominee as the owner of the security, and in order to transfer or exchange these securities or to receive payments other than interest or other interim payments, you or your nominee must physically deliver the securities to the trustee, registrar, paying agent or other agent, as applicable. Global securities name a depositary or its nominee as the owner of the debt securities, depositary shares, stock purchase contracts, stock purchase units, warrants or units represented by these global securities. The depositary maintains a computerized system that will reflect each investor’s beneficial ownership of the securities through an account maintained by the investor with its broker/dealer, bank, trust company or other representative, as we explain more fully below.
Registered Global Securities
We may issue the registered debt securities, depositary shares, stock purchase contracts, stock purchase units, warrants and units in the form of one or more fully registered global securities that will be deposited with a depositary or its nominee identified in the applicable prospectus supplement and registered in the name of that depositary or nominee. In those cases, one or more registered global securities will be issued in a denomination or aggregate denominations equal to the portion of the aggregate principal or face amount of the securities to be represented by registered global securities. Unless and until it is exchanged in whole for securities in definitive registered form, a registered global security may not be transferred except as a whole by and among the depositary for the registered global security, the nominees of the depositary or any successors of the depositary or those nominees.
If not described below, any specific terms of the depositary arrangement with respect to any securities to be represented by a registered global security will be described in the prospectus supplement relating to those securities. We anticipate that the following provisions will apply to all depositary arrangements.
Ownership of beneficial interests in a registered global security will be limited to persons, called participants, that have accounts with the depositary or persons that may hold interests through participants. Upon the issuance of a registered global security, the depositary will credit, on its book-entry registration and transfer system, the participants’ accounts with the respective principal or face amounts of the securities beneficially owned by the participants. Any dealers, underwriters or agents participating in the distribution of the securities will designate the accounts to be credited. Ownership of beneficial interests in a registered global security will be shown on, and the transfer of ownership interests will be effected only through, records maintained by the depositary, with respect to interests of participants, and on the records of participants, with respect to interests of persons holding through participants. The laws of some states may require that some purchasers of securities take physical delivery of these securities in definitive form. These laws may impair your ability to own, transfer or pledge beneficial interests in registered global securities.
So long as the depositary, or its nominee, is the registered owner of a registered global security, that depositary or its nominee, as the case may be, will be considered the sole owner or holder of the securities represented by the registered global security for all purposes under the applicable indenture, depositary agreement, stock purchase contract, warrant agreement, stock purchase unit agreement or unit agreement. Except as described below, owners of beneficial interests in a registered global security will not be entitled to have the securities represented by the registered global security registered in their names, will not receive or be entitled to receive physical delivery of the securities in definitive form and will not be considered the owners or holders of the securities under the applicable indenture, depositary agreement, stock purchase contract, stock purchase unit agreement, warrant agreement or unit agreement. Accordingly, each person owning a beneficial interest in a registered global security must rely on the procedures of the depositary for that registered global security and, if that person is not a participant, on the procedures of the participant through which the person owns its interest, to exercise any rights of a holder under the applicable indenture, depositary agreement, stock purchase contract, stock purchase unit agreement, warrant agreement or unit agreement. We understand that under existing industry practices, if we request any action of holders or if
an owner of a beneficial interest in a registered global security desires to give or take any action that a holder is entitled to give or take under the applicable indenture, depositary agreement, stock purchase contract, stock purchase unit agreement, warrant agreement or unit agreement, the depositary for the registered global security would authorize the participants holding the relevant beneficial interests to give or take that action, and the participants would authorize beneficial owners owning through them to give or take that action or would otherwise act upon the instructions of beneficial owners holding through them.
Principal, premium, if any, and interest payments on debt securities, and any payments to holders with respect to depositary shares, warrants, purchase agreements, stock purchase units or units, represented by a registered global security registered in the name of a depositary or its nominee will be made to the depositary or its nominee, as the case may be, as the registered owner of the registered global security. None of Bankwell, the trustees, any warrant agent, unit agent or any other agent of Bankwell, agent of the trustee or agent of such warrant agent or unit agent will have any responsibility or liability for any aspect of the records relating to payments made on account of beneficial ownership interests in the registered global security or for maintaining, supervising or reviewing any records relating to those beneficial ownership interests.
We expect that the depositary for any of the securities represented by a registered global security, upon receipt of any payment to holders of principal, premium, interest or other distribution of underlying securities or other property on that registered global security, will immediately credit participants’ accounts in amounts proportionate to their respective beneficial interests in that registered global security as shown on the records of the depositary. We also expect that payments by participants to owners of beneficial interests in a registered global security held through participants will be governed by standing customer instructions and customary practices, as is now the case with the securities held for the accounts of customers registered in “street name,” and will be the responsibility of those participants.
If the depositary for any of these securities represented by a registered global security is at any time unwilling or unable to continue as depositary or ceases to be a clearing agency registered under the Exchange Act, and a successor depositary registered as a clearing agency under the Exchange Act is not appointed by us within 90 days, we will issue securities in definitive form in exchange for the registered global security that had been held by the depositary. Any securities issued in definitive form in exchange for a registered global security will be registered in the name or names that the depositary gives to the relevant trustee, warrant agent, unit agent or other relevant agent of ours or theirs. It is expected that the depositary’s instructions will be based on directions received by the depositary from participants with respect to ownership of beneficial interests in the registered global security that had been held by the depositary.
PLAN OF DISTRIBUTION
We may sell securities:
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through underwriters;
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through dealers;
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through agents;
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directly to purchasers; or
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through a combination of any of these methods of sale.
In addition, we may issue the securities as a dividend or distribution or in a subscription rights offering to our existing security holders.
We may directly solicit offers to purchase securities, or agents may be designated to solicit such offers. We will, in the prospectus supplement relating to such offering, name any agent that could be viewed as an underwriter under the Securities Act and describe any commissions that we must pay. Any such agent will be acting on a best efforts basis for the period of its appointment or, if indicated in the applicable prospectus supplement, on a firm commitment basis. Agents, dealers and underwriters may be customers of, engage in transactions with, or perform services for us in the ordinary course of business. This prospectus may be used in connection with any offering of our securities through any of these methods or other methods described in the applicable prospectus supplement.
The distribution of the securities may be effected from time to time in one or more transactions:
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at a fixed price, or prices, which may be changed from time to time;
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at market prices prevailing at the time of sale;
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at prices related to such prevailing market prices; or
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at negotiated prices.
Each prospectus supplement will describe the method of distribution of the securities and any applicable restrictions.
The prospectus supplement with respect to the securities of a particular series will describe the terms of the offering of the securities, including the following:
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the name of the agent or any underwriters;
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the public offering or purchase price;
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any discounts and commissions to be allowed or paid to the agent or underwriters;
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all other items constituting underwriting compensation;
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any discounts and commissions to be allowed or paid to dealers; and
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any exchanges on which the securities will be listed.
If any underwriters or agents are utilized in the sale of the securities in respect of which this prospectus is delivered, we will enter into an underwriting agreement or other agreement with them at the time of sale to them, and we will set forth in the prospectus supplement relating to such offering the names of the underwriters or agents and the material terms of the related agreement with them.
If a dealer is utilized in the sale of the securities in respect of which the prospectus is delivered, we will sell such securities to the dealer, as principal. The dealer may then resell such securities to the public at varying prices to be determined by such dealer at the time of resale.
If we offer securities in a subscription rights offering to our existing security holders, we may enter into a standby underwriting agreement with dealers, acting as standby underwriters. We may pay the standby underwriters a commitment fee for the securities they commit to purchase on a standby basis. If we do not enter into a standby underwriting arrangement, we may retain a dealer manager to manage a subscription rights offering.
To the extent that we make sales through one or more underwriters or agents in at-the-market offerings, we will do so pursuant to the terms of a sales agency financing agreement or other at-the-market offering arrangement between us and the underwriters or agents. If we engage in at-the-market sales pursuant to any such agreement, we will issue and sell our securities through one or more underwriters or agents, which may act on an agency basis or on a principal basis. During the term of any such agreement, we may sell securities on a daily basis in exchange transactions or otherwise as we agree with the underwriters or agents. The agreement will provide that any securities sold will be sold at prices related to the then prevailing market prices for our securities. Therefore, exact figures regarding proceeds that will be raised or commissions to be paid cannot be determined at this time. Pursuant to the terms of the agreement, we may agree to sell, and the relevant underwriters or agents may agree to solicit offers to purchase, blocks of our common stock or other securities. The terms of each such agreement will be set forth in more detail in a prospectus supplement to this prospectus.
Remarketing firms, agents, underwriters and dealers may be entitled under agreements which they may enter into with us to indemnification by us against certain civil liabilities, including liabilities under the Securities Act, and may be customers of, engage in transactions with or perform services for us in the ordinary course of business.
If so indicated in the applicable prospectus supplement, we will authorize underwriters or other persons acting as our agents to solicit offers by certain institutions to purchase securities from us pursuant to delayed delivery contracts providing for payment and delivery on the date stated in the prospectus supplement. Each contract will be for an amount not less than, and the aggregate amount of securities sold pursuant to such contracts shall not be less nor more than, the respective amounts stated in the prospectus supplement. Institutions with whom the contracts, when authorized, may be made include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and other institutions, but shall in all cases be subject to our approval. Delayed delivery contracts will not be subject to any conditions except that:
•
the purchase by an institution of the securities covered under that contract shall not at the time of delivery be prohibited under the laws of the jurisdiction to which that institution is subject; and
•
if the securities are also being sold to underwriters acting as principals for their own account, the underwriters shall have purchased such securities not sold for delayed delivery. The underwriters and other persons acting as our agents will not have any responsibility in respect of the validity or performance of delayed delivery contracts.
Certain of the underwriters and their associates and affiliates may be customers of, have borrowing relationships with, engage in other transactions with, and/or perform services, including investment banking services, for, us or one or more of our affiliates in the ordinary course of business.
In order to facilitate the offering of the securities, underwriters may engage in transactions that stabilize, maintain or otherwise affect the price of the securities or any other securities the prices of which may be used to determine payments on such securities. Specifically, underwriters may overallot in connection with the offering, creating a short position for their own accounts. In addition, to cover overallotments or to stabilize the price of the securities or of any such other securities, the underwriters may bid for, and purchase, the securities or any such other securities in the open market. Finally, in any offering of the securities through a syndicate of underwriters, the underwriting syndicate may reclaim selling concessions allowed to an underwriter or a dealer for distributing the securities in the offering if the syndicate repurchases previously distributed securities in transactions to cover syndicate short positions, in stabilization transactions or otherwise. Any of these activities may stabilize or maintain the market price of the securities above independent market levels. Underwriters are not required to engage in these activities and may end any of these activities at any time.
Each series of securities will be a new issue of securities and will have no established trading market other than the common stock which is listed on the NASDAQ Global Market. Any underwriters to whom securities are sold for public offering and sale may make a market in the securities, but such underwriters will not be obligated to do so and may discontinue any market making at any time without notice. The securities, other than the common stock, may or may not be listed on a national securities exchange. We can make no assurance as to the liquidity of or the existence of trading markets for any of the securities.
LEGAL MATTERS
Unless the applicable prospectus supplement indicates otherwise, the validity of the securities in respect of which this prospectus is being delivered will be passed upon by Hinckley, Allen & Snyder LLP, Hartford, Connecticut.
EXPERTS
Whittlesey & Hadley, P.C., independent registered public accounting firm, has audited the consolidated financial statements of Bankwell Financial Group, Inc. included in its Annual Report on Form 10-K as of December 31, 2014 and 2013 and for each of the three years in the period ended December 31, 2014, as set forth in their reports, which are incorporated by reference in this prospectus and registration statement. Bankwell Financial Group Inc.’s financial statements as of December 31, 2014 and 2013 and for each of the three years in the period ended December 31, 2014 are incorporated by reference in reliance on Whittlesey & Hadley, P.C. reports, given on their authority as experts in accounting and auditing.
Debt Securities
Common Stock
Preferred Stock
Depositary Shares
Stock Purchase Contracts and Stock Purchase Units
Warrants
Units
PROSPECTUS
_________ ___, 2015
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Set forth below is an estimate (except in the case of the registration fee) of the amount of fees and expenses to be incurred in connection with the issuance and distribution of the offered securities, other than underwriting discounts and commissions.
|
SEC registration fee
|
|
|
|
$ |
5,810(1) |
|
|
|
Printing and engraving
|
|
|
|
$ |
(2) |
|
|
|
Accounting services
|
|
|
|
$ |
(2) |
|
|
|
Legal fees of registrant’s counsel
|
|
|
|
$ |
(2) |
|
|
|
Listing fees
|
|
|
|
$ |
(2) |
|
|
|
Miscellaneous
|
|
|
|
$ |
(2) |
|
|
|
Total
|
|
|
|
$ |
(2) |
|
|
|
(1)
An indeterminate amount of the securities of each identified class is being registered as may from time to time be offered hereunder at indeterminate prices, along with an indeterminate number of securities that may be issued upon exercise, settlement, exchange or conversion of securities offered or sold hereunder. The proposed maximum aggregate offering price has been estimated solely to calculate the registration fee under Rule 457(o) of the Securities Act.
(2)
These fees are calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at this time.
Item 15. Indemnification of Directors and Officers.
Section 33-779 of the Connecticut General Statutes, or CGS, provides that a corporation may provide indemnification of or advance expenses to a director, officer, employee or agent only as permitted by Section 33-770 to 33-778, inclusive of the CGS.
Pursuant to Section 33-771 to Section 33-776, a corporation may indemnify a director, officer, employee, or agent who is a party to a proceeding against liability incurred in connection with the proceeding if the individual meets a certain standard of conduct. The corporation may indemnify the individual if: (1)(A) the director conducted himself in good faith; (B) the individual reasonably believed (i) in the case of conduct in his official capacity, that his conduct was in the best interests of the corporation; and (ii) in all other cases, that his conduct was at least not opposed to the best interests of the corporation; and (C) in the case of any criminal proceeding, the individual had no reasonable cause to believe his conduct was unlawful; or (2) the individual engaged in conduct for which broader indemnification has been made permissible or obligatory under a provision of the certificate of incorporation as authorized by Section 33-636(b)(5). Under Section 33-775, the determination of and the authorization for indemnification are made by the (a) board of directors; (b) special legal counsel; (c) shareholders; or (d) in the case of indemnification of an officer, agent or employee of the corporation, by the general counsel of the corporation or such other officer(s) as the board of directors may specify.
Where a director, officer, employee, or agent of the corporation has been wholly successful on the merits, Section 33-772 with Section 33-776 provides that a corporation shall indemnify the individual against reasonable expenses incurred by the individual in connection with a proceeding to which the individual was a party.
Pursuant to Section 33-771(d), in the case of a proceeding by or in the right of the corporation or with respect to conduct for which the director, officer, agent or employee was adjudged liable on the basis that he received a financial benefit to which he was not entitled, indemnification is limited to reasonable expenses incurred in connection with the proceeding against the corporation to which the individual was a named party.
Section 33-773 permits a corporation to pay expenses incurred by the indemnified party in defending an action, suit or proceeding in advance of final disposition if approved by the board of directors or shareholders and accompanied by (1) a signed written affirmation that the director in good faith believes he complied with the standard of conduct in 33-771(a) and (2) an undertaking by the indemnified party to repay such amounts if it later determined that he is not entitled to indemnification. Also, Section 33-774 requires the company to indemnify the director or advance expenses if ordered by the court. Section 33-777 also authorizes Connecticut corporation to buy liability insurance on behalf of any director, officer, agent or employee.
Section 33-778 permits a corporation by a provision in its certificate of incorporation or bylaws or in a resolution adopted by its shareholder or directors to obligate itself to provide indemnification in accordance with these provisions or advance funds to pay or reimburse expenses.
Consistent with the laws of the State of Connecticut, Article VI of our bylaws incorporates Section 33-770 to 33-778 of the CGS by reference and provides that we shall indemnify the directors, officers, employees and agents of the Company to the maximum extent permitted and/or required by the Certificate of Incorporation or applicable law. The indemnification payments shall not exceed the amount permissible under applicable state or federal law, including but not limited to the limitations on indemnification imposed by Section 18(k) of the Federal Deposit Insurance Act and the regulation issued thereunder by the Federal Deposit Insurance Corporation.
In addition, Article IX of our Certificate of Incorporation provides that a director’s personal liability to the Company for monetary damages for a breach of duty is limited to the amount of the compensation received by the director for serving the Company during the year of the violation if the breach did not (1) involve a knowing and culpable violation of law by the director, (2) enable the director or an associate, as defined in subdivision (3) of Section 33-843 or any similar successor provision of the Connecticut General Statutes to receive an improper personal economic gain, (3) show a lack of good faith and a conscious disregard for the duty of the director to the Company under circumstances in which the director was aware that his conduct or omission created an unjustifiable risk of serious injury to the Company, (4) constitute a sustained and unexcused pattern of inattention that amounted to an abdication of the director’s duty to the Company, or (5) create liability under Section 33-757 as amended, or Section 36a-58 of the Connecticut General Statutes. This provision shall not limit or preclude the liability of a person who is or was a director for any act or omission occurring prior to the effective date hereof.
We have entered into indemnification agreements with certain of our executive officers and directors pursuant to which we have agreed to indemnify such persons against certain expenses and liabilities incurred or paid by such person in connection with any proceeding arising from the fact that such person is or was an officer or director of our company, and to advance expenses as incurred by or on behalf of such person in connection therewith. The indemnification rights set forth above shall not be exclusive of any other right which an indemnified person may have or hereafter acquire under any statute, provision of our governing documents, agreement, vote of shareholders or disinterested directors or otherwise.
Item 16. Exhibits.
The exhibits to this Registration Statement are listed in the Exhibit Index, which appears elsewhere herein and is incorporated herein by reference.
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the “Securities Act of 1933”);
(ii)
to reflect in the prospectus any facts or events arising after the effective date of this 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 this registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii)
to include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this registration statement; provided, however, that paragraphs (1)(i), (1)(ii) and (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, as amended (the “Exchange Act”), that are incorporated by reference in this registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of this registration statement.
(2)
That, for the purposes 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 the time shall be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4)
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(a)
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
(b)
each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5)
That, for the purpose of determining liability of 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 such 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, such undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(a)
any preliminary prospectus or prospectus of such undersigned Registrant relating to the offering required to be filed pursuant to Rule 424;
(b)
any free writing prospectus relating to the offering prepared by or on behalf of such undersigned Registrant or used or referred to by such undersigned Registrant;
(c)
the portion of any other free writing prospectus relating to the offering containing material information about such undersigned Registrant or its securities provided by or on behalf of such undersigned Registrant; and
(d)
any other communication that is an offer in the offering made by such undersigned Registrant to the purchaser.
(6)
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 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this 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.
(7)
That, for purposes of determining any liability under the Securities Act of 1933:
(a)
the information omitted from the form of prospectus filed as part of the registration statement in reliance upon Rule 430A and contained in the form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed to be part of the registration statement as of the time it was declared effective; and
(b)
each post-effective amendment that contains a form of prospectus 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.
(8)
To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act.
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 indemnification provisions described herein, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by a 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 Securities Act of 1933 and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Town of New Canaan, State of Connecticut, on July 29, 2015.
|
|
|
|
BANKWELL FINANCIAL GROUP INC. |
|
|
|
|
|
By: |
|
|
/s/ Ernest J. Verrico
Name: Ernest J. Verrico Title: Executive Vice President and Chief Financial Officer
|
|
SIGNATURES AND POWER OF ATTORNEY
We, the undersigned officers and directors of Bankwell Financial Group, Inc. hereby severally constitute and appoint Christopher R. Gruseke and Ernest J. Verrico, and each of them singly, our true and lawful attorneys with full power to any of them, and to each of them singly, to sign for us and in our names in the capacities indicated below the Registration Statement on Form S-3 filed herewith and any and all amendments (including post-effective amendments) to said Registration Statement and generally to do all such things in our name and behalf in our capacities as officers and directors to enable Bankwell Financial Group, Inc. to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them, to said Registration Statement and any and all amendments (including post-effective amendments) thereto.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
|
Signature
|
|
|
Title
|
|
|
Date
|
|
|
/s/ Christopher R. Gruseke
Christopher R. Gruseke
|
|
|
President, Chief Executive Officer and Director (Principal Executive Officer)
|
|
|
July 29, 2015
|
|
|
/s/ Ernest J. Verrico
Ernest J. Verrico
|
|
|
Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)
|
|
|
July 29, 2015
|
|
|
/s/ Frederick R. Afragola
Frederick R. Afragola
|
|
|
Director
|
|
|
July 29, 2015
|
|
|
/s/ George P. Bauer
George P. Bauer
|
|
|
Director
|
|
|
July 29, 2015
|
|
|
/s/ Michael J. Brandt
Michael J. Brandt
|
|
|
Director
|
|
|
July 29, 2015
|
|
|
/s/ Richard Castiglioni
Richard Castiglioni
|
|
|
Director
|
|
|
July 29, 2015
|
|
|
/s/ Eric J. Dale
Eric J. Dale
|
|
|
Director
|
|
|
July 29, 2015
|
|
|
/s/ James A. Fieber
James A. Fieber
|
|
|
Director
|
|
|
July 29, 2015
|
|
|
/s/ William J. Fitzpatrick, III
William J. Fitzpatrick, III
|
|
|
Director
|
|
|
July 29, 2015
|
|
|
/s/ Daniel S. Jones
Daniel S. Jones
|
|
|
Director
|
|
|
July 29, 2015
|
|
|
/s/ Todd Lampert
Todd Lampert
|
|
|
Director
|
|
|
July 29, 2015
|
|
|
/s/ Victor S. Liss
Victor S. Liss
|
|
|
Director
|
|
|
July 29, 2015
|
|
|
/s/ Raymond W. Palumbo
Raymond W. Palumbo
|
|
|
Director
|
|
|
July 29, 2015
|
|
|
/s/ Blake S. Drexler
Blake S. Drexler
|
|
|
Chairman of the Board
|
|
|
July 29, 2015
|
|
EXHIBIT INDEX
Number
|
|
|
Description
|
|
Exhibit 1* |
|
|
Form of Underwriting Agreement |
|
Exhibit 3.1 |
|
|
Certificate of Incorporation of the Registrant, as amended to date(1) |
|
Exhibit 3.2 |
|
|
Amended and Restated Bylaws of the Registrant(1) |
|
Exhibit 3.3* |
|
|
Form of Certificate of Amendment Containing Preferred Stock Terms |
|
Exhibit 4.1 |
|
|
Form of Senior Indenture |
|
Exhibit 4.2 |
|
|
Form of Subordinated Indenture |
|
Exhibit 4.3 |
|
|
Form of Senior Note |
|
Exhibit 4.4 |
|
|
Form of Subordinated Note |
|
Exhibit 4.5* |
|
|
Form of Depositary Agreement (including form of depositary receipt) |
|
Exhibit 4.6* |
|
|
Form of Warrant Agreement (including form of warrant) |
|
Exhibit 4.7* |
|
|
Form of Stock Purchase Contract Agreement (including form of related security certificate) |
|
Exhibit 4.8* |
|
|
Form of Stock Purchase Unit Agreement |
|
Exhibit 4.9* |
|
|
Form of Unit Agreement (including form of unit certificate) |
|
Exhibit 5 |
|
|
Opinion of Hinckley, Allen & Snyder LLP |
|
Exhibit 12.1 |
|
|
Computation of Ratio of Earnings to Fixed Charges |
|
Exhibit 23.1 |
|
|
Consent of Hinckley, Allen & Snyder LLP (included in Exhibit 5) |
|
Exhibit 23.2 |
|
|
Consent of Whittlesey & Hadley, P.C.(with respect to the Registrant) |
|
Exhibit 24 |
|
|
Powers of Attorney (included in the signature pages to the Registration Statement) |
|
Exhibit 25.1* |
|
|
Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of the Trustee under the Senior Indenture |
|
Exhibit 25.2* |
|
|
Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of the Trustee under the Subordinated Indenture |
|
*
To be filed by amendment to the Registration Statement or by a Current Report on Form 8-K, Quarterly Report on Form 10-Q or Annual Report on Form 10-K prior to the issuance of the applicable securities.
(1)
Incorporated by reference to the Registrant’s Registration Statement on Form S-1 filed on April 4, 2014.
Exhibit 4.1
BANKWELL FINANCIAL GROUP, INC.
and
Trustee
INDENTURE
Dated as of
SENIOR DEBT SECURITIES
CROSS-REFERENCE TABLE(1)
Section of |
|
|
Trust Indenture Act |
|
Section of |
of 1939, as amended |
|
Indenture |
|
|
|
310(a) |
|
6.09 |
310(b) |
|
6.08 |
|
|
6.10 |
311(a) |
|
6.13 |
311(b) |
|
6.13 |
312(a) |
|
4.01 |
|
|
4.04 |
312(b) |
|
4.04(c) |
312(c) |
|
4.04(c) |
313(a) |
|
4.03 |
313(b) |
|
4.03 |
313(c) |
|
4.03 |
313(d) |
|
4.03 |
314(a) |
|
4.02 |
314(b) |
|
Inapplicable |
314(c) |
|
2.04 |
|
|
8.04 |
|
|
9.01(c) |
|
|
10.01(b) |
|
|
11.05 |
314(d) |
|
Inapplicable |
314(e) |
|
11.05 |
314(f) |
|
Inapplicable |
315(a) |
|
6.01 |
|
|
6.02 |
315(b) |
|
5.11 |
315(c) |
|
6.01 |
315(d) |
|
6.01 |
|
|
6.02 |
315(e) |
|
5.12 |
316(a) |
|
5.09 |
|
|
5.10 |
|
|
7.04 |
316(b) |
|
5.06 |
|
|
5.10 |
|
|
|
316(c) |
|
7.02 |
317(a) |
|
5.04 |
317(b) |
|
3.04 |
318(a) |
|
11.07 |
| (1) | This Cross-Reference Table does not constitute part of the Indenture and shall not have any bearing on the interpretation of
any of its terms or provisions. |
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS |
1 |
Section 1.01 |
Certain Terms Defined |
1 |
ARTICLE 2 SECURITIES |
5 |
Section 2.01 |
Forms Generally |
5 |
Section 2.02 |
Form of Trustee’s Certificate of Authentication |
5 |
Section 2.03 |
Issuable in Series |
5 |
Section 2.04 |
Authentication and Delivery of Securities |
7 |
Section 2.05 |
Execution of Securities |
8 |
Section 2.06 |
Certificate of Authentication |
9 |
Section 2.07 |
Denomination and Date of Securities; Payments of Interest |
9 |
Section 2.08 |
Registration, Transfer and Exchange |
9 |
Section 2.09 |
Mutilated, Defaced, Destroyed, Lost and Stolen Securities |
11 |
Section 2.10 |
Cancellation of Securities; Destruction Thereof |
11 |
Section 2.11 |
Temporary Securities |
12 |
ARTICLE 3 COVENANTS OF THE ISSUER |
12 |
Section 3.01 |
Payment of Principal and Interest |
12 |
Section 3.02 |
Offices for Payments, Etc |
12 |
Section 3.03 |
Appointment to Fill a Vacancy in Office of Trustee |
13 |
Section 3.04 |
Paying Agents |
13 |
Section 3.05 |
Existence |
13 |
Section 3.06 |
Maintenance of Properties |
14 |
Section 3.07 |
Insurance |
14 |
Section 3.08 |
Payment of Taxes and Other Claims |
14 |
Section 3.09 |
Written Statement to Trustee |
14 |
ARTICLE 4 SECURITY HOLDERS LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE |
14 |
Section 4.01 |
Issuer to Furnish Trustee Information as to Names and Addresses of Security Holders |
14 |
Section 4.02 |
Reports by the Issuer |
14 |
Section 4.03 |
Reports by the Trustee |
14 |
Section 4.04 |
Preservation of Information; Communication with Security Holders |
15 |
ARTICLE 5 REMEDIES OF THE TRUSTEE AND SECURITY HOLDERS ON EVENT OF DEFAULT |
15 |
Section 5.01 |
Event of Default Defined; Acceleration of Maturity; Waiver of Default |
15 |
Section 5.02 |
Collection of Debt by Trustee; Trustee May
Prove Debt |
17 |
Section 5.03 |
Application of Proceeds |
18 |
Section 5.04 |
Suits for Enforcement |
19 |
Section 5.05 |
Restoration of Rights on Abandonment of Proceedings |
19 |
Section 5.06 |
Limitations on Suits by Security Holders |
19 |
Section 5.07 |
Unconditional Right of Security Holders to Institute Certain
Suits |
20 |
Section 5.08 |
Powers and Remedies Cumulative; Delay or Omission Not Waiver
of Default |
20 |
Section 5.09 |
Control by Holders of Securities |
20 |
Section 5.10 |
Waiver of Past Defaults |
21 |
Section 5.11 |
Trustee to Give Notice of Default |
21 |
Section 5.12 |
Right of Court to Require Filing of Undertaking to Pay Costs |
21 |
Section 5.13 |
Waiver of Usury, Stay or Extension Laws |
21 |
Section 5.14 |
Undertaking for Costs |
21 |
ARTICLE 6 CONCERNING THE
TRUSTEE |
22 |
Section 6.01 |
Duties and Responsibilities of the Trustee; During Default;
Prior to Default |
22 |
Section 6.02 |
Certain Rights of the Trustee |
22 |
Section 6.03 |
Trustee Not Responsible for Recitals, Disposition of Securities
or Application of Proceeds Thereof. |
23 |
Section 6.04 |
Trustee and Agents May Hold Securities; Collections, Etc |
23 |
Section 6.05 |
Moneys Held by Trustee |
23 |
Section 6.06 |
Compensation and Indemnification of Trustee and Its Prior Claim |
23 |
Section 6.07 |
Right of Trustee to Rely on Officer’s Certificate, Etc |
24 |
Section 6.08 |
Disqualification; Conflicting Interests |
24 |
Section 6.09 |
Persons Eligible for Appointment as Trustee |
24 |
Section 6.10 |
Resignation and Removal; Appointment of Successor Trustee |
24 |
Section 6.11 |
Acceptance
of Appointment by Successor Trustee |
25 |
Section 6.12 |
Merger, Conversion, Consolidation or Succession to Business
of Trustee |
26 |
Section 6.13 |
Preferential Collection of Claims Against the Issuer |
26 |
ARTICLE 7 CONCERNING THE
SECURITY HOLDERS |
26 |
Section 7.01 |
Evidence of Action Taken by Security Holders |
26 |
Section 7.02 |
Proof of Execution of Instruments and of Holding of Securities |
27 |
Section 7.03 |
Holders to Be Treated as Owners |
27 |
Section 7.04 |
Securities Owned by Issuer Deemed Not Outstanding |
27 |
Section 7.05 |
Right of Revocation of Action Taken |
27 |
ARTICLE 8 SUPPLEMENTAL INDENTURES |
28 |
Section 8.01 |
Supplemental Indentures Without Consent of Security Holders |
28 |
Section 8.02 |
Supplemental Indentures With Consent of Security Holders |
29 |
Section 8.03 |
Effect of Supplemental Indenture |
30 |
Section 8.04 |
Documents to Be Given to Trustee |
30 |
Section 8.05 |
Notation on Securities in Respect of Supplemental Indentures |
30 |
ARTICLE 9 CONSOLIDATION, MERGER, SALE OR CONVEYANCE |
30 |
Section 9.01 |
Issuer May Consolidate, Etc., on Certain Terms |
30 |
Section 9.02 |
Successor Issuer Substituted |
31 |
ARTICLE 10 SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE; UNCLAIMED MONEYS |
31 |
Section 10.01 |
Satisfaction and Discharge of Indenture; Defeasance |
31 |
Section 10.02 |
Application by Trustee of Funds Deposited for Payment of Securities |
34 |
Section 10.03 |
Repayment of Moneys Held by Paying Agent |
34 |
Section 10.04 |
Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years |
34 |
Section 10.05 |
Indemnity for U.S. Government Obligations |
34 |
ARTICLE 11 MISCELLANEOUS PROVISIONS |
35 |
Section 11.01 |
No Recourse |
35 |
Section 11.02 |
Provisions of Indenture for the Sole Benefit of Parties and Holders of Securities |
35 |
Section 11.03 |
Successors and Assigns of Issuer Bound by Indenture |
35 |
Section 11.04 |
Notices and Demands on Issuer, Trustee and Holders of Securities |
35 |
Section 11.05 |
Officer’s Certificates and Opinions of Counsel; Statements to Be Contained Therein |
36 |
Section 11.06 |
Payments Due on Saturdays, Sundays and Holidays |
36 |
Section 11.07 |
Conflict of Any Provision of Indenture With Trust Indenture Act of 1939 |
37 |
Section 11.08 |
New York Law to Govern |
37 |
Section 11.09 |
Counterparts |
37 |
Section 11.10 |
Effect of Headings |
37 |
Section 11.11 |
Actions by Successor |
37 |
Section 11.12 |
Severability |
37 |
ARTICLE 12 REDEMPTION OF SECURITIES AND SINKING FUNDS |
37 |
Section 12.01 |
Applicability of Article |
37 |
Section 12.02 |
Notice of Redemption; Partial Redemptions |
37 |
Section 12.03 |
Payment of Securities Called for Redemption |
38 |
Section 12.04 |
Exclusion of Certain Securities from Eligibility for Selection for Redemption |
39 |
Section 12.05 |
Mandatory and Optional Sinking Funds |
39 |
THIS INDENTURE, dated as
of between Bankwell Financial Group, Inc., a Connecticut corporation
(the “Issuer”), and ________, a ___________ (the “Trustee”),
W I T N E S S E T H :
WHEREAS, the Issuer may
from time to time duly authorize the issue of its unsecured debentures, notes or other evidences of indebtedness to be issued in
one or more series (the “Securities”) up to such principal amount or amounts as may from time to time be authorized
in accordance with the terms of this Indenture;
WHEREAS, the Issuer has
duly authorized the execution and delivery of this Indenture to provide, among other things, for the authentication, delivery and
administration of the Securities; and
WHEREAS, all things necessary
to make this Indenture a valid indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases
of the Securities by the Holders thereof, the Issuer and the Trustee mutually covenant and agree for the equal and proportionate
benefit of the respective Holders from time to time of the Securities as follows:
ARTICLE 1
DEFINITIONS
Section 1.01 Certain
Terms Defined. The following terms (except as otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this
Section. All other terms used in this Indenture that are defined in the Trust Indenture Act of 1939 or the definitions of which
in the Securities Act of 1933 are referred to in the Trust Indenture Act of 1939, including terms defined therein by reference
to the Securities Act of 1933 (except as herein otherwise expressly provided or unless the context otherwise clearly requires),
shall have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of
this Indenture. All accounting terms used herein and not expressly defined shall have the meanings assigned to such terms in accordance
with generally accepted accounting principles, and the term “generally accepted accounting principles” means such accounting
principles as are generally accepted in the United States at the time of any computation. The words “herein”, “hereof”
and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision. The terms defined in this Article have the meanings assigned to them in this Article and include
the plural as well as the singular.
“Affiliate”
means, with respect to any specified Person, any other Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person. For the purposes of this definition, “control,” when used with
respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled”
have meanings correlative to the foregoing.
“Board of Directors”
means either the Board of Directors of the Issuer or any committee of such Board of Directors duly authorized to act on its behalf.
“Board Resolution”
means a copy of one or more resolutions, certified by the secretary or an assistant secretary of the Issuer to have been duly adopted
by the Board of Directors and to be in full force and effect, and delivered to the Trustee.
“Business Day”
means, with respect to any Security, a day that in the city (or in any of the cities, if more than one) in which amounts are payable,
as specified in the form of such Security, is not a day on which banking institutions are authorized or required by law or regulation
to close.
“Commission”
means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934,
or if at any time after the execution and delivery of this Indenture such Commission is not existing and performing the duties
now assigned to it under the Trust Indenture Act of 1939, then the body performing such duties on such date.
“Common Stock”
means shares of common stock, no par value per share, of the Issuer as the same exists at the date of execution and delivery of
this Indenture or as such stock may be reconstituted from time to time.
“Corporate Trust
Office” means the office of the Trustee at which the corporate trust business of the Trustee shall, at any particular
time, be principally administered, which office is, at the date as of which this Indenture is dated, located at _____________________________________.
“Debt”
of any Person means any debt for money borrowed which is created, assumed, incurred or guaranteed in any manner by such Person
or for which such Person is otherwise responsible or liable, and shall expressly include any such guaranty thereof by such Person.
For the purpose of computing the amount of the Debt of any Person there shall be excluded all Debt of such Person for the payment
or redemption or satisfaction of which money or securities (or evidences of such Debt, if permitted under the terms of the instrument
creating such Debt) in the necessary amount shall have been deposited in trust with the proper depositary, whether upon or prior
to the maturity or the date fixed for redemption of such Debt; and, in any instance where Debt is so excluded, for the purpose
of computing the assets of such Person there shall be excluded the money, securities or evidences of Debt deposited by such Person
in trust for the purpose of paying or satisfying such Debt.
“Depositary”
means, with respect to the Securities of any series issuable or issued in the form of one or more Global Securities, the Person
designated as Depositary by the Issuer pursuant to Section 2.04 until a successor Depositary shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter “Depositary” shall mean or include each Person who is then
a Depositary hereunder, and if at any time there is more than one such Person, “Depositary” as used with respect to
the Securities of any such series shall mean the Depositary with respect to the Global Securities of that series.
“Dollar”
means the currency of the United States of America as at the time of payment is legal tender for the payment of public and private
debts.
“Event of Default”
means any event or condition specified as such in Section 5.01.
“Foreign Currency”
means a currency issued by the government of a country other than the United States.
“Global Security”,
means a Security evidencing all or a part of a series of Securities, issued to the Depositary for such series in accordance with
Section 2.04, and bearing the legend prescribed in Section 2.04.
“Holder”,
“Holder of Securities”, “Security Holder” or other similar terms mean the Person in
whose name such Security is registered in the Security register kept by the Issuer for that purpose in accordance with the terms
hereof.
“Indenture”
means this instrument as originally executed and delivered or, if amended or supplemented as herein provided, as so amended or
supplemented or both, and shall include the forms and terms of particular series of Securities established as contemplated hereunder.
“interest”,
unless the context otherwise requires, refers to interest, and when used with respect to non-interest bearing Securities, refers
to interest payable after maturity, if any.
“Issuer”
means Bankwell Financial Group, Inc., a Connecticut corporation, and, subject to Article 9, its successors and assigns.
“Issuer Order”
means a written statement, request or order of the Issuer signed in its name by the chairman of the Board of Directors, the president
or any vice president of the Issuer.
“Notice of Default”
shall have the meaning set forth in Section 5.01(c).
“Officer’s
Certificate” means a certificate signed by the chairman of the Board of Directors, the president, any vice president,
the treasurer, the secretary or any assistant secretary of the Issuer and delivered to the Trustee. Each such certificate shall
comply with Section 314 of the Trust Indenture Act of 1939 and, except to the extent provided herein, shall include the statements
provided for in Section 11.05.
“Opinion of Counsel”
means an opinion in writing signed by the general corporate counsel or such other legal counsel who may be an employee of or counsel
to the Issuer and who shall be satisfactory to the Trustee. Each such opinion shall comply with Section 314 of the Trust Indenture
Act of 1939 and shall include the statements provided for in Section 11.05, if and to the extent required hereby.
“original issue
date” of any Security (or portion thereof) means the earlier of (a) the date of such Security or (b) the date of any
Security (or portion thereof) for which such Security was issued (directly or indirectly) on registration of transfer, exchange
or substitution.
“Original Issue
Discount Security” means any Security that provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to Section 5.01.
“Outstanding”,
when used with reference to Securities, shall, subject to the provisions of Section 7.04, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture, except
(a) Securities
theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(b) Securities,
or portions thereof, for the payment or redemption of which cash or U.S. Government Obligations (as provided for in Section 10.01(a)
and Section 10.01(b)) in the necessary amount shall have been deposited in trust with the Trustee or with any paying agent (other
than the Issuer) or shall have been set aside, segregated and held in trust by the Issuer for the Holders of such Securities (if
the Issuer shall act as its own paying agent); provided, that if such Securities, or portions thereof, are to be redeemed prior
to the maturity thereof, notice of such redemption shall have been given as herein provided, or provision satisfactory to the Trustee
shall have been made for giving such notice; and
(c)
Securities in substitution for which other Securities shall have been authenticated and delivered, or which shall have been paid,
pursuant to the terms of Section 2.09 (except with respect to any such Security as to which proof satisfactory to the Trustee is
presented that such Security is held by a Person in whose hands such Security is a legal, valid and binding obligation of the Issuer),
Securities converted into Common Stock pursuant hereto and Securities not deemed outstanding pursuant to Section 12.02.
In determining whether
the Holders of the requisite principal amount of Outstanding Securities of any or all series have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, (i) the principal amount of an Original Issue Discount Security that shall be deemed
to be Outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of
such determination upon a declaration of acceleration of the maturity thereof pursuant to Section 5.01 and (ii) Securities owned
by the Issuer or any other obligor upon the Securities or any Affiliate of the Issuer or of such other obligor shall be disregarded
and deemed not to be Outstanding, except that,
in determining whether the Trustee shall be protected in making any such determination or relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities that a Responsible Officer of the Trustee actually knows to
be so owned shall be so disregarded. Securities so owned that shall have been pledged in good faith may be regarded as Outstanding
if the pledgee establishes to the satisfaction of the Trustee (A) the pledgee’s right so to act with respect to such Securities
and (B) that the pledgee is not the Issuer or any other obligor upon the Securities or an Affiliate (other than a Trust) of the
Issuer or such other obligor.
“Person”
means any individual, corporation, partnership, limited partnership, limited liability company, joint venture, association, joint
stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
“principal”
whenever used with reference to the Securities or any Security or any portion thereof, shall be deemed to include “and premium,
if any”.
“record date”
shall have the meaning set forth in Section 2.07.
“Responsible Officer”,
when used with respect to the Trustee, means the chairman of the board of directors, any vice chairman of the board of directors,
the chairman of the trust committee, the chairman of the executive committee, any vice chairman of the executive committee, the
president, any vice president, the cashier, the secretary, the treasurer, any trust officer, any assistant trust officer, any assistant
vice president, any assistant cashier, any assistant secretary, any assistant treasurer, or any other officer or assistant officer
of the Trustee customarily performing 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 his or her knowledge of and familiarity with the particular
subject.
“Security”
or “Securities” has the meaning stated in the first recital of this Indenture, or, as the case may be, Securities
that have been authenticated and delivered under this Indenture.
“Security Registrar”
shall have the meaning set forth in Section 4.01(b).
“Significant Subsidiary”
means any Subsidiary which is a “significant subsidiary” (as defined in Article I, Rule 1-02 of Regulation S-X, promulgated
under the Securities Act of 1933, as amended) of the Issuer.
“Subsidiary”
means a corporation, partnership, business or statutory trust or limited liability company, a majority of the outstanding voting
equity securities or a majority of the voting membership or partnership interests, as the case may be, of which is owned or controlled,
directly or indirectly, by the Issuer or by one or more other Subsidiaries of the Issuer. 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.
“Trust Indenture Act” or
“Trust Indenture Act of 1939” (except as otherwise provided in Sections 8.01 and 8.02) means the Trust Indenture
Act of 1939 as in force at the date as of which this Indenture was originally executed.
“Trustee”
means the Person identified as “Trustee” in the first paragraph hereof and, subject to the provisions of Article 6,
shall also include any successor trustee. “Trustee” shall also mean or include each Person who is then a trustee hereunder
and if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any series
shall mean the trustee with respect to the Securities of such series.
“U.S. Government
Obligation” means (a) a direct obligation of the United States of America, backed by its full faith and credit, or (b)
an obligation of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America,
the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America.
“Vice president”,
when used with respect to the Issuer 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 of “vice president”.
“Yield to Maturity”
means the yield to maturity on a series of securities, calculated at the time of issuance of such series, or, if applicable, at
the most recent redetermination of interest on such series, and calculated in accordance with accepted financial practice.
ARTICLE 2
SECURITIES
Section 2.01 Forms
Generally. The Securities of each series shall be substantially in such form (not inconsistent with this Indenture) as shall
be established by or pursuant to one or more Board Resolutions (as set forth in a Board Resolution or, to the extent established
pursuant to (rather than set forth in) a Board Resolution, an Officer’s Certificate detailing such establishment) or in one
or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture and may have imprinted or otherwise reproduced thereon such legend or legends or
endorsements, not inconsistent with the provisions of this Indenture, as may be required to comply with any law or with any rules
or regulations pursuant thereto, or with any rules of any securities exchange or to conform to general usage, all as may be determined
by the officers executing such Securities as evidenced by their execution of such Securities.
The definitive Securities
shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities as evidenced by their execution of such Securities.
Section 2.02 Form
of Trustee’s Certificate of Authentication. The Trustee’s certificate of authentication on all Securities shall
be in substantially the following form:
This is one of the Securities
of the series designated herein and referred to in the within-mentioned Indenture.
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as Trustee |
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By: |
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Authorized Officer |
Section 2.03 Issuable
in Series. The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is [$__________________].
The Securities may be issued
in one or more series. The terms of a series of Securities shall be established prior to the initial issuance thereof in or pursuant
to one or more Board Resolutions, or, to the extent established pursuant to (rather than set forth in) a Board Resolution, in an
Officer’s Certificate detailing such establishment and/or established in one or more indentures supplemental hereto. The
terms of such series reflected in such Board Resolution, Officer’s Certificate, or supplemental indenture may include the
following or any additional or different terms:
(a)
the designation of the Securities of the series (which may be part of a series of Securities previously issued);
(b)
the terms and conditions, if applicable, upon which conversion or exchange of the Securities into Common Stock will be effected,
including the initial conversion or exchange price or rate and any adjustments thereto, the conversion or exchange period and other
provisions in addition to or in lieu of those described herein;
(c)
any limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Securities of the series pursuant to Section 2.08, 2.09, 2.11, 8.05 or 12.03);
(d)
if other than Dollars, the Foreign Currency in which the Securities of that series are denominated;
(e)
any date on which the principal
of the Securities of the series is payable and the right, if any, to extend such date or dates;
(f) the
rate or rates at which the Securities of the series shall bear interest, if any, the record date or dates for the determination
of Holders to whom interest is payable, the date or dates from which such interest shall accrue and on which such interest shall
be payable and/or the method by which such rate or rates or date or dates shall be determined, and the right, if any, to extend
the interest payment periods and the duration of that extension;
(g) the
place or places where the principal of and any interest on Securities of the series shall be payable (if other than as provided
in Section 3.02);
(h)
the price or prices at which, the period or periods within which and the terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, at the option of the Issuer, pursuant to any sinking fund or otherwise;
(i) the
obligation, if any, of the Issuer to redeem, purchase or repay Securities of the series pursuant to any mandatory redemption, sinking
fund or analogous provisions or at the option of a Holder thereof and the price or prices at which and the period or periods within
which and any terms and conditions upon which Securities of the series shall be redeemed, purchased or repaid, in whole or in part,
pursuant to such obligation;
(j) if
other than denominations of $1,000 and any integral multiple thereof, the denominations in which Securities of the series shall
be issuable;
(k) if
other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof;
(l) if
other than the currency in which the Securities of that series are denominated, the currency in which payment of the principal
of or interest on the Securities of such series shall be payable;
(m) if
the principal of or interest on the Securities of the series is to be payable, at the election of the Issuer or a Holder thereof,
in a currency other than that in which the Securities are denominated, the period or periods within which, and the terms and conditions
upon which, such election may be made;
(n) if
the amount of payments of principal of and interest on the Securities of the series may be determined with reference to an index
based on a currency other than that in which the Securities of the series are denominated, or by reference to one or more currency
exchange rates, securities or baskets of securities, commodity prices or indices, the manner in which such amounts shall be determined;
(o) if
Sections 10.01(b) or 10.01(c) are inapplicable to Securities of such series;
(p) whether
and under what circumstances the Issuer will pay additional amounts on the Securities of any series in respect of any tax, assessment
or governmental charge withheld or deducted and, if so, whether the Issuer will have the option to redeem such Securities rather
than pay such additional amounts;
(q) if
the Securities of such series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, then
the form and terms of such certificates, documents or conditions;
(r) any
trustees, authenticating or paying agents, transfer agents or registrars or any other agents with respect to the Securities of
such series;
(s) any
other events of default or covenants with respect to the Securities of such series in addition to or in lieu of those contained
in this Indenture;
(t) if
the Securities of the series may be issued in exchange for surrendered Securities of another series, or for other securities of
the Issuer, pursuant to the terms of such Securities or securities or of any agreement entered into by the Issuer, the ratio of
the principal amount of the Securities of the series to be issued to the principal amount of the Securities or securities to be
surrendered in exchange, and any other material terms of the exchange; and
(u) any
other terms of the series.
The Issuer may from time
to time, without notice to or the consent of the Holders of any series of Securities, create and issue further Securities of any
such series ranking equally with the Securities of such series in all respects (or in all respects other than (1) the payment of
interest accruing prior to the issue date of such further Securities or (2) the first payment of interest following the issue date
of such further Securities). Such further Securities may be consolidated and form a single series with the Securities of such series
and have the same terms as to status, redemption or otherwise as the Securities of such series.
Section 2.04 Authentication
and Delivery of Securities. The Issuer may deliver Securities of any series executed by the Issuer to the Trustee for authentication
together with the applicable documents referred to below in this Section, and the Trustee shall thereupon authenticate and deliver
such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant
to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The
maturity date, original issue date, interest rate and any other terms of the Securities of such series shall be determined by or
pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication
and delivery pursuant to oral instructions from the Issuer or its duly authorized agent, which instructions shall be promptly confirmed
in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon:
(a) an
Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to
the Issuer;
(b) any
Board Resolution, Officer’s Certificate and/or executed supplemental indenture referred to in Sections 2.01 and 2.03 by or
pursuant to which the forms and terms of the Securities were established;
(c) an
Officer’s Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms
of the Securities have been established pursuant to Sections 2.01 and 2.03 and comply with this Indenture, and covering such other
matters as the Trustee may reasonably request; and
(d) an
Opinion of Counsel to the effect that:
i. the
form or forms and terms of such Securities have been established pursuant to Sections 2.01 and 2.03 and comply with this Indenture,
ii. the
authentication and delivery of such Securities by the Trustee are authorized under the provisions of this Indenture,
iii. such
Securities when authenticated and delivered by the Trustee and issued by the Issuer in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and binding obligations of the Issuer, and
iv. all
laws and requirements in respect of the execution and delivery by the Issuer of the Securities have been complied with, and covering
such other matters as the Trustee may reasonably request.
The Trustee shall have
the right to decline to authenticate and deliver any Securities under this Section if the Trustee, being advised by counsel, determines
that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of
trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such
action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties
or immunities under the Securities, this Indenture or otherwise.
The Issuer shall execute
and the Trustee shall, in accordance with this Section with respect to the Securities of a series, authenticate and deliver one
or more Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount
of all of the Securities of such series issued and not yet cancelled, (ii) shall be registered in the name of the Depositary for
such Global Security or Securities or the nominee of such Depositary, (iii) shall be delivered by the Trustee to such Depositary
or pursuant to such Depositary’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless
and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred
except as a whole by the Depositary to the nominee of the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.”
Each Depositary designated
pursuant to this Section must, at the time of its designation and at all times while it serves as Depositary, be a clearing agency
registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.
Section 2.05 Execution
of Securities. The Securities shall be signed on behalf of the Issuer by the chairman of its Board of Directors, any vice chairman
of its Board of Directors, its chief executive officer, its principal financial officer, its president, any vice president or its
treasurer. Such signatures may be the manual or facsimile signatures of the present or any future such officers. Typographical
and other minor errors or defects in any such reproduction of any such signature shall not affect the validity or enforceability
of any Security that has been duly authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall
have signed any of the Securities shall cease to be such officer before the Security so signed shall be authenticated and delivered
by the Trustee or disposed of by the Issuer, such Security nevertheless may be authenticated and delivered or disposed of as though
the person who signed such Security had not ceased to be such officer of the Issuer; and any Security may be signed on behalf of
the Issuer by such persons as, at the actual date of the execution of such Security, shall be the proper officers of the Issuer,
although at the date of the execution and delivery of this Indenture any such person was not such an officer.
Section 2.06 Certificate
of Authentication. Only such Securities as shall bear thereon a certificate of authentication substantially in the form hereinbefore
recited, executed by the Trustee by the manual signature of one of its authorized officers, shall be entitled to the benefits of
this Indenture or be valid or obligatory for any purpose. The execution of such certificate by the Trustee upon any Security executed
by the Issuer shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder
and that the Holder is entitled to the benefits of this Indenture.
Section 2.07 Denomination
and Date of Securities; Payments of Interest. The Securities of each series shall be issuable in denominations established
as contemplated by Section 2.03 or, if not so established, in denominations of $1,000 and any integral multiple thereof. The Securities
of each series shall be numbered, lettered or otherwise distinguished in such manner or in accordance with such plan as the officers
of the Issuer executing the same may determine with the approval of the Trustee, as evidenced by the execution and authentication
thereof. Unless otherwise indicated in a Board Resolution, Officer’s Certificate or supplemental indenture for a particular
series, interest will be calculated on the basis of a 360-day year of twelve 30-day months.
Each Security shall be
dated the date of its authentication. The Securities of each series shall bear interest, if any, from the date, and such interest
shall be payable on the dates, established as contemplated by Section 2.03.
The Person in whose name
any Security of any series is registered at the close of business on any record date applicable to a particular series with respect
to any interest payment date for such series shall be entitled to receive the interest, if any, payable on such interest payment
date notwithstanding any transfer, exchange or conversion of such Security subsequent to the record date and prior to such interest
payment date, except if and to the extent the Issuer shall default in the payment of the interest due on such interest payment
date for such series, in which case such defaulted interest shall be paid to the Persons in whose names Outstanding Securities
for such series are registered at the close of business on a subsequent record date (which shall be not less than five Business
Days prior to the date of payment of such defaulted interest) established by notice given by mail by or on behalf of the Issuer
to the Holders of Securities not less than 15 days preceding such subsequent record date. The term “record date” as
used with respect to any interest payment date (except a date for payment of defaulted interest) for the Securities of any series
shall mean the date specified as such in the terms of the Securities of such series established as contemplated by Section 2.03,
or, if no such date is so established, if such interest payment date is the first day of a calendar month, the 15th day of the
immediately preceding calendar month or, if such interest payment date is the 15th day of a calendar month, the first day of such
calendar month, whether or not such record date is a Business Day.
Section 2.08 Registration,
Transfer and Exchange. The Issuer will keep at each office or agency to be maintained for the purpose as provided in Section
3.02 for each series of Securities a register or registers in which, subject to such reasonable regulations as it may prescribe,
it will provide for the registration of Securities of such series and the registration of transfer of Securities of such series.
Such register shall be in written form in the English language or in any other form capable of being converted into such form within
a reasonable time. At all reasonable times such register or registers shall be open for inspection by the Trustee.
Upon due presentation for
registration of transfer of any Security of any series at any such office or agency to be maintained for the purpose as provided
in Section 3.02, the Issuer shall execute and the Trustee shall authenticate and deliver in the name of the transferee or transferees
a new Security or Securities of the same series, maturity date, interest rate and original issue date in authorized denominations
for a like aggregate principal amount.
At the option of the Holder
thereof, Securities of any series (except a Global Security) may be exchanged for a Security or Securities of such series having
authorized denominations and an equal aggregate principal amount, upon surrender of such Securities to be exchanged at the agency
of the Issuer that shall be maintained for such purpose in accordance with Section 3.02 and upon payment, if the Issuer shall so
require, of the charges hereinafter provided. Whenever any Securities are so surrendered for exchange, the Issuer shall execute,
and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
All Securities surrendered upon any exchange
or transfer provided for in this Indenture shall be promptly cancelled and disposed of by the Trustee and the Trustee will deliver
a certificate of disposition thereof to the Issuer.
All Securities presented
for registration of transfer, exchange, redemption or payment shall (if so required by the Issuer or the Trustee) be duly endorsed
by, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Issuer and the Trustee duly
executed by, the Holder or his or her attorney duly authorized in writing.
The Issuer may require
payment of a sum sufficient to cover any stamp or other tax or other governmental charge that may be imposed in connection with
any exchange or registration of transfer of Securities. No service charge shall be made for any such transaction.
The Issuer shall not be
required to exchange or register a transfer of (a) any Securities of any series for a period of 15 days immediately preceding the
first mailing of notice of redemption of Securities of such series to be redeemed or (b) any Securities selected, called or being
called for redemption, in whole or in part, except, in the case of any Security to be redeemed in part, the portion thereof not
so to be redeemed.
Notwithstanding any other
provision of this Section 2.08, unless and until it is exchanged in whole or in part for Securities in definitive registered form,
a Global Security representing all or a portion of the Securities of a series may not be transferred except as a whole by the Depositary
for such series to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor Depositary for such series or a nominee of such successor Depositary.
If at any time the Depositary
for the Securities of a series notifies the Issuer that it is unwilling or unable to continue as Depositary for the Securities
of such series or if at any time the Depositary for the Securities of a series shall no longer be eligible under Section 2.04,
the Issuer shall appoint a successor Depositary with respect to the Securities of such series. If a successor Depositary for the
Securities of such series is not appointed by the Issuer within 90 days after the Issuer receives such notice or becomes aware
of such ineligibility, the Issuer’s determination pursuant to Section 2.03 that the Securities of such series be represented
by a Global Security shall no longer be effective and the Issuer will execute, and the Trustee, upon receipt of an Officer’s
Certificate for the authentication and delivery of definitive Securities of such series, will authenticate and deliver, Securities
of such series in definitive registered form, in any authorized denominations, in an aggregate principal amount equal to the principal
amount of the Global Security or Securities representing the Securities of such series, in exchange for such Global Security or
Securities.
The Issuer may at any time
and in its sole discretion determine that the Securities of any series issued in the form of one or more Global Securities shall
no longer be represented by a Global Security or Securities. In such event the Issuer will execute, and the Trustee, upon receipt
of an Officer’s Certificate for the authentication and delivery of definitive Securities of such series, will authenticate
and deliver, Securities of such series in definitive registered form, in any authorized denominations, in an aggregate principal
amount equal to the principal amount of the Global Security or Securities representing such series, in exchange for such Global
Security or Securities.
The Depositary for such
Global Security may surrender such Global Security in exchange in whole or in part for Securities of the same series in definitive
registered form in accordance with the two preceding paragraphs or on such other terms as are acceptable to the Issuer and such
Depositary. Thereupon, the Issuer shall execute, and the Trustee shall authenticate and deliver, without service charge,
(i) to
the Person specified by such Depositary a new Security or Securities of the same series, of any authorized denominations as requested
by such Person, in an aggregate principal amount equal to and in exchange for such Person’s beneficial interest in the Global
Security; and
(ii) to
such Depositary a new Global Security in a denomination equal to the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Securities authenticated and delivered pursuant to clause (i) above.
Upon the exchange of a
Global Security for Securities in definitive registered form, in authorized denominations, such Global Security shall be cancelled
by the Trustee. Securities in definitive registered form issued in exchange for a Global Security pursuant to this Section 2.08
shall be registered in such names and in such authorized denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such
Securities to or as directed by the Persons in whose names such Securities are so registered.
All Securities issued upon
any transfer or exchange of Securities shall be valid obligations of the Issuer, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Securities surrendered upon such transfer or exchange.
Section 2.09 Mutilated,
Defaced, Destroyed, Lost and Stolen Securities. In case any temporary or definitive Security shall become mutilated, defaced
or be destroyed, lost or stolen, the Issuer in its discretion may execute, and upon the written request of any officer of the Issuer,
the Trustee shall authenticate and deliver a new Security of the same series, maturity date, interest rate and original issue date,
bearing a number or other distinguishing symbol not contemporaneously outstanding, in exchange and substitution for the mutilated
or defaced Security, or in lieu of and substitution for the Security so destroyed, lost or stolen. In every case the applicant
for a substitute Security shall furnish to the Issuer and to the Trustee and any agent of the Issuer or the Trustee such security
or indemnity as may be required by them to indemnify and defend and to save each of them harmless and, in every case of destruction,
loss or theft, evidence to their satisfaction of the destruction, loss or theft of such Security and of the ownership thereof and
in the case of mutilation or defacement shall surrender the Security to the Trustee.
Upon the issuance of any
substitute Security, the Issuer 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.
In case any Security which has matured or is about to mature or has been called for redemption in full, or is being surrendered
for conversion in full, shall become mutilated or defaced or be destroyed, lost or stolen, the Issuer may, instead of issuing a
substitute Security (with the Holder’s consent, in the case of convertible Securities), pay or authorize the payment of the
same or convert, or authorize conversion of the same (without surrender thereof except in the case of a mutilated or defaced Security),
if the applicant for such payment shall furnish to the Issuer and to the Trustee and any agent of the Issuer or the Trustee such
security or indemnity as any of them may require to save each of them harmless, and, in every case of destruction, loss or theft,
the applicant shall also furnish to the Issuer and the Trustee and any agent of the Issuer or the Trustee evidence to their satisfaction
of the destruction, loss or theft of such Security and of the ownership thereof.
Every substitute Security
of any series issued pursuant to the provisions of this Section by virtue of the fact that any such Security is destroyed, lost
or stolen shall constitute an additional contractual obligation of the Issuer, 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 (but shall be subject to all the limitations
of rights set forth in) this Indenture equally and proportionately with any and all other Securities of such series duly authenticated
and delivered hereunder. All Securities shall be held and owned upon the express condition that, to the extent permitted by law,
the foregoing provisions are exclusive with respect to the replacement or payment or conversion of mutilated, defaced or destroyed,
lost or stolen Securities and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without
their surrender.
Section 2.10 Cancellation
of Securities; Destruction Thereof. All Securities surrendered for exchange for Securities of the same series or for payment,
redemption, registration of transfer, conversion or for credit against
any payment in respect of a sinking or analogous
fund, if surrendered to the Issuer or any agent of the Issuer or the Trustee, shall be delivered to the Trustee for cancellation
or, if surrendered to the Trustee, shall be cancelled by it; and no Securities shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Indenture. The Trustee shall dispose of cancelled Securities held by it and deliver
a certificate of disposition to the Issuer. If the Issuer shall acquire any of the Securities, such acquisition shall not operate
as a redemption or satisfaction of the Debt represented by such Securities unless and until the same are delivered to the Trustee
for cancellation.
Section 2.11 Temporary
Securities. Pending the preparation of definitive Securities for any series, the Issuer may execute and the Trustee shall authenticate
and deliver temporary Securities for such series (printed, lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be issuable in any authorized denomination, and substantially
in the form of the definitive Securities of such series but with such omissions, insertions and variations as may be appropriate
for temporary Securities, all as may be determined by the Issuer with the concurrence of the Trustee as evidenced by the execution
and authentication thereof. Temporary Securities may contain such reference to any provisions of this Indenture as may be appropriate.
Every temporary Security shall be executed by the Issuer and be authenticated by the Trustee upon the same conditions and in substantially
the same manner, and with like effect, as the definitive Securities. Without unreasonable delay the Issuer shall execute and shall
furnish definitive Securities of such series and thereupon temporary Securities of such series may be surrendered in exchange therefor
without charge at each office or agency to be maintained by the Issuer for that purpose pursuant to Section 3.02 and the Trustee
shall authenticate and deliver in exchange for such temporary Securities of such series an equal aggregate principal amount of
definitive Securities of the same series having authorized denominations. Until so exchanged, the temporary Securities of any series
shall be entitled to the same benefits under this Indenture as definitive Securities of such series, unless the benefits of the
temporary Securities are limited pursuant to Section 2.03.
ARTICLE 3
COVENANTS OF THE ISSUER
Section 3.01 Payment
of Principal and Interest. The Issuer covenants and agrees for the benefit of each series of Securities that it will duly and
punctually pay or cause to be paid the principal of, and interest on, each of the Securities of such series (together with any
additional amounts payable pursuant to the terms of such Securities) at the place or places, at the respective times and in the
manner provided in such Securities and in this Indenture. The interest on Securities (together with any additional amounts payable
pursuant to the terms of such Securities) shall be payable only to or upon the written order of the Holders thereof and at the
option of the Issuer may be paid by mailing checks for such interest payable to or upon the written order of such Holders at their
last addresses as they appear on the Security register of the Issuer.
Section 3.02 Offices
for Payments, Etc. The Issuer will maintain (i) in , an agency where
the Securities of each series may be presented for payment, an agency where the Securities of each series may be presented for
exchange and conversion, if applicable, as provided in this Indenture and an agency where the Securities of each series may be
presented for registration of transfer as in this Indenture provided and (ii) such further agencies in such places as may be determined
for the Securities of such series pursuant to Section 2.03.
The Issuer will maintain
in , an agency where notices and demands to or upon the Issuer in respect
of the Securities of any series or this Indenture may be served.
The Issuer will give to
the Trustee written notice of the location of each such agency and of any change of location thereof. In case the Issuer shall
fail to maintain any agency required by this Section to be located in ,
or shall fail to give such notice of the location or of any change in the location of any of the above agencies, presentations
and demands may be made and notices may be served at the Corporate Trust Office of the Trustee.
The Issuer may from time
to time designate one or more additional agencies where the Securities of a series may be presented for payment, where the Securities
of that series may be presented for exchange or conversion, if
applicable, as provided in this Indenture and
pursuant to Section 2.03 and where the Securities of that series may be presented for registration of transfer as in this Indenture
provided, and the Issuer may from time to time rescind any such designation, as the Issuer may deem desirable or expedient; provided,
however, that no such designation or rescission shall in any manner relieve the Issuer of its obligation to maintain the agencies
provided for in this Section. The Issuer will give to the Trustee prompt written notice of any such designation or rescission thereof.
Section 3.03 Appointment
to Fill a Vacancy in Office of Trustee. The Issuer, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 6.10, a Trustee, so that there shall at all times be a Trustee with respect to
each series of Securities hereunder.
Section 3.04 Paying
Agents. Whenever the Issuer shall appoint a paying agent other than the Trustee with respect to the Securities of any series,
it will cause such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section,
(a) that
it will hold all sums received by it as such agent for the payment of the principal of or interest on the Securities of such series
(whether such sums have been paid to it by the Issuer or by any other obligor on the Securities of such series) in trust for the
benefit of the Holders of the Securities of such series or of the Trustee,
(b) that
it will give the Trustee notice of any failure by the Issuer (or by any other obligor on the Securities of such series) to make
any payment of the principal of or interest on the Securities of such series when the same shall be due and payable, and
(c) that
at any time during the continuance of any such failure, upon the written request of the Trustee, it will forthwith pay to the Trustee
all sums so held in trust by such paying agent.
The Issuer will, on or
prior to each due date of the principal of or interest on the Securities of such series, deposit with the paying agent a sum sufficient
to pay such principal or interest so becoming due, and (unless such paying agent is the Trustee) the Issuer will promptly notify
the Trustee of any failure to take such action.
If the Issuer shall act
as its own paying agent with respect to the Securities of any series, it will, on or before each due date of the principal of or
interest on the Securities of such series, set aside, segregate and hold in trust for the benefit of the Holders of the Securities
of such series a sum sufficient to pay such principal or interest so becoming due. The Issuer will promptly notify the Trustee
of any failure to take such action.
Anything in this Section
to the contrary notwithstanding, but subject to Section 10.01, the Issuer may at any time, for the purpose of obtaining a satisfaction
and discharge with respect to one or more or all series of Securities hereunder, or for any other reason, pay or cause to be paid
to the Trustee all sums held in trust for any such series by the Issuer or any paying agent hereunder, as required by this Section,
such sums to be held by the Trustee upon the trusts herein contained.
Anything in this Section
to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section is subject to the provisions of
Sections 10.03 and 10.04.
Section 3.05 Existence.
The Issuer shall do or cause to be done all things necessary to preserve and keep in full force and effect (i) the corporate existence
of the Issuer, (ii) the existence (corporate or other) of each Significant Subsidiary of the Issuer and (iii) the rights (charter
and statutory), licenses and franchises of the Issuer and each of its Significant Subsidiaries; provided, however, that the Issuer
shall not be required to preserve the existence (corporate or other) of any of its Significant Subsidiaries or any such right,
license or franchise of the Issuer or any of its Significant Subsidiaries if the Board of Directors of the Issuer determines that
the preservation thereof is no longer desirable in the conduct of the business of the Issuer and its Significant Subsidiaries taken
as a whole and that the loss thereof will not be disadvantageous in any material respect to the Holders.
Section 3.06 Maintenance
of Properties. The Issuer will, and will cause each of its Significant Subsidiaries to, cause all its properties used or useful
in the conduct of its business to be maintained and kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as
in the judgment of the Issuer may be necessary so that the business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section shall prevent the Issuer or any Significant Subsidiary
from discontinuing the operation and maintenance of any of their respective properties if such discontinuance is, in the judgment
of the Board of Directors of the Issuer desirable in the conduct of its business.
Section 3.07 Insurance.
The Issuer will cause each of its and its Subsidiaries’ insurable properties to be insured against loss or damage in an amount
deemed reasonable by the Board of Directors with insurers of recognized responsibility.
Section 3.08 Payment
of Taxes and Other Claims. The Issuer will pay or discharge or cause to be paid or discharged, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges levied or imposed upon it or any Subsidiary or upon the income,
profits or property of the Issuer or any Subsidiary, and (ii) all lawful claims for labor, materials and supplies which, if unpaid,
might by law become a lien upon the property of the Issuer or any Subsidiary; provided, however, that the Issuer 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 3.09 Written
Statement to Trustee. So long as any Securities are Outstanding hereunder, the Issuer will deliver to the Trustee, within 120
days after the end of each fiscal year of the Issuer ending after the date hereof, a written statement covering the previous fiscal
year, signed by two of its officers (which need not comply with Section 11.05), stating that in the course of the performance of
their duties as officers of the Issuer they would normally have knowledge of any default by the Issuer in the performance or fulfillment
of any covenant, agreement or condition contained in this Indenture, stating whether or not they have knowledge of any such default
and, if so, specifying each such default of which the signers have knowledge and the nature thereof.
ARTICLE 4
SECURITY HOLDERS LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE
Section 4.01 Issuer
to Furnish Trustee Information as to Names and Addresses of Security Holders. The Issuer covenants and agrees that it will
furnish or cause to be furnished to the Trustee a list in such form as the Trustee may reasonably require of the names and addresses
of the Holders of the Securities of each series pursuant to Section 312 of the Trust Indenture Act of 1939:
(a) semiannually
and not more than 15 days after each record date for the payment of interest on such Securities, as hereinabove specified, as of
such record date and on dates to be determined pursuant to Section 2.03 for non-interest bearing Securities in each year, and
(b) at
such other times as the Trustee may request in writing, within 30 days after receipt by the Issuer of any such request as of a
date not more than 15 days prior to the time such information is furnished, provided, that, if and so long as the Trustee shall
be the Security registrar (the “Security Registrar”) for such series, such list shall not be required to be furnished.
Section 4.02 Reports
by the Issuer. The Issuer covenants to comply with Section 314(a) of the Trust Indenture Act.
Section 4.03 Reports
by the Trustee. Any Trustee’s report required under Section 313(a) of the Trust Indenture Act of 1939 shall be transmitted
on or before in each year following the date hereof, so
long as any Securities are Outstanding hereunder, and shall be dated as of a date convenient to the Trustee but no more than
60 nor less than 45 days prior thereto. The
Trustee shall comply with Sections 313(b), 313(c) and 313(d) of the Trust Indenture Act.
Section 4.04 Preservation
of Information; Communication with Security Holders. (a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders of Securities contained in the most recent list furnished
to it as provided in Section 4.01 and as to the names and addresses of Holders of Securities received by the Trustee in its capacity
as Security Registrar (if acting in such capacity).
(b) The
Trustee may destroy any list furnished to it as provided in Section 4.01 upon receipt of a new list so furnished.
(c) Security
Holders may communicate as provided in Section 312(b) of the Trust Indenture Act with other Security Holders with respect to their
rights under this Indenture or under the Securities. The Issuer, the Trustee, the Security Registrar and any other Person shall
have the protection of Section 312(c) of the Trust Indenture Act.
ARTICLE 5
REMEDIES OF THE TRUSTEE AND SECURITY HOLDERS ON EVENT OF DEFAULT
Section 5.01 Event
of Default Defined; Acceleration of Maturity; Waiver of Default. “Event of Default”, with respect to Securities
of any series wherever used herein, means each one of the following events which shall have occurred and be continuing (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):
(a) default
in the payment of any installment of interest upon any of the Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days (or such other period as may be established for the Securities
of such series as contemplated by Section 2.03); or
(b) default
in the payment of all or any part of the principal of (or premium or make-whole amount, if any, on) any of the Securities of such
series as and when the same shall become due and payable either at maturity, upon redemption, by declaration or otherwise (and,
if established for the Securities of such series as contemplated by Section 2.03, the continuance of such default for a specified
period), or default in the deposit of any sinking fund payment, to the extent applicable to such series of Securities, when and
as due by the terms of any Security of that series; or
(c) default
in the performance, or breach, of any covenant or agreement of the Issuer in respect of the Securities of such series (other than
a covenant or agreement in respect of the Securities of such series a default in the performance or breach of which is elsewhere
in this Section specifically dealt with), and continuance of such default or breach for a period of 90 days after there has been
given, by registered or certified mail, to the Issuer by the Trustee or to the Issuer and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities of all series affected thereby, a written notice specifying such default
or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or
(d) default
under any bond, debenture, note, mortgage, indenture or instrument under which there may be issued or by which there may be secured
or evidenced any indebtedness for money borrowed by the Issuer (or by any Subsidiary, the repayment of which the Issuer has guaranteed
or for which the Issuer is directly responsible or liable as obligor or guarantor), having an aggregate principal amount outstanding
of at least $30,000,000, whether such indebtedness now exists or shall hereafter be created, which default shall have resulted
in such indebtedness becoming or being declared due and payable prior to
the date on which it would otherwise
have become due and payable, without such indebtedness having been discharged, or such acceleration having been rescinded or annulled,
within a period of 30 days after there shall have been given, by registered or certified mail, to the Issuer by the Trustee or
to the Issuer and the Trustee by the Holders of at least 10% in principal amount of the Outstanding Securities of that series a
written notice specifying such default and requiring the Issuer to cause such indebtedness to be discharged or cause such acceleration
to be rescinded or annulled and stating that such notice is a “Notice of Default” hereunder; provided, however, that,
subject to the provisions of Sections 6.01 and 6.02, the Trustee shall not be deemed to have knowledge of such default unless either
(A) a Responsible Officer of the Trustee shall have knowledge of such default or (B) the Trustee shall have received written notice
thereof from the Issuer, from any Holder, from the holder of any such indebtedness or from the trustee under any such mortgage,
indenture or other instrument; or
(e) a
court having jurisdiction in the premises shall enter pursuant to or within the meaning of any Bankruptcy Law a decree or order
for relief in respect of the Issuer in an involuntary case under any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official)
of the Issuer or any Significant Subsidiary or for all or substantially all of their respective properties and assets or ordering
the winding up or liquidation of their respective affairs, and such decree or order shall remain unstayed and in effect for a period
of 90 consecutive days; or
(f) the
Issuer shall commence a voluntary case under any applicable Bankruptcy Law, insolvency or other similar law now or hereafter in
effect, or consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment
of or taking possession by a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of the Issuer
or for any substantial part of its property and assets, or make any general assignment for the benefit of creditors; or
(g) any
other Event of Default provided for in such series of Securities.
As used in this Section
5.01, the term “Bankruptcy Law” means title 11, U.S. Code or any similar Federal or state law for the relief of debtors.
If an Event of Default
described in clauses (a), (b), (c), (d) or (g) occurs and is continuing, then, and in each and every such case, unless the principal
of all of the Securities of such series shall have already become due and payable, either the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Securities of such series then Outstanding hereunder (each such series voting as
a separate class) by notice in writing to the Issuer (and also to the Trustee if given by Security Holders), may declare the entire
principal (or, if the Securities of such series are Original Issue Discount Securities, such portion of the principal amount as
may be specified in the terms of such series) of all Securities of such series and the interest accrued thereon, if any, to be
due and payable immediately, and upon any such declaration the same shall become immediately due and payable. If an Event of Default
described in clauses (e) or (f) occurs and is continuing, then and in each and every such case, the entire principal (or, if any
Securities are Original Issue Discount Securities, such portion of the principal as may be specified in the terms thereof) of all
the Securities then Outstanding and interest accrued thereon, if any, shall become immediately due and payable.
The foregoing provisions,
however, are subject to the condition that if, at any time after the principal of the Securities of any series shall have been
so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered
as hereinafter provided, the Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay all matured installments
of interest upon all the Securities of such series and the principal of any and all Securities of such series which shall have
become due otherwise than by acceleration (with interest upon such principal and, to the extent that payment of such interest is
enforceable under applicable law, on overdue installments of interest, at the same rate as the rate of interest specified in the
Securities of such series to the date of such payment or deposit) and such amount as shall be sufficient to cover reasonable compensation
to the Trustee, its agents, attorneys and counsel, and all other expenses and liabilities incurred, and
all advances made, by the Trustee except as
a result of negligence or bad faith, and if any and all Events of Default under the Indenture with respect to such series, other
than the non-payment of the principal of Securities of such series which shall have become due by acceleration, shall have been
cured, waived or otherwise remedied as provided herein—then and in every such case the Holders of a majority in aggregate
principal amount of all the Securities of such series then Outstanding, by written notice to the Issuer and to the Trustee, may
waive all defaults with respect to such series and rescind and annul such declaration and its consequences, but no such waiver
or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
Unless otherwise indicated
in the Board Resolution, Officer’s Certificate or supplemental indenture for a series of Original Issue Discount Securities,
for all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been
accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such
declaration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration,
and payment of such portion of the principal thereof as shall be due and payable as a result of such acceleration, together with
interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount
Securities.
Section 5.02 Collection
of Debt by Trustee; Trustee May Prove Debt. The Issuer covenants that (a) in case default shall be made in the payment of any
installment of interest on any of the Securities of any series when such interest shall have become due and payable, and such default
shall have continued for a period of 30 days or (b) in case default shall be made in the payment of all or any part of the principal
of any of the Securities of any series when the same shall have become due and payable, whether upon maturity of the Securities
of such series or upon any redemption or by declaration or otherwise—then, upon demand of the Trustee, the Issuer will pay
to the Trustee for the benefit of the Holders of the Securities of such series the whole amount that then shall have become due
and payable on all Securities of such series for principal or interest, as the case may be (with interest to the date of such payment
upon the overdue principal and, to the extent that payment of such interest is enforceable under applicable law, on overdue installments
of interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified
in the Securities of such series); and, in addition thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including reasonable compensation to the Trustee and each predecessor trustee, their respective agents,
attorneys and counsel, and any expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor trustee
except as a result of its negligence or bad faith.
In case the Issuer shall
fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be
entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid,
and may prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree
against the Issuer or other obligor upon such Securities and collect in the manner provided by law out of the property of the Issuer
or other obligor upon such Securities, wherever situated, the moneys adjudged or decreed to be payable.
In case there shall be
pending proceedings relative to the Issuer or any other obligor upon the Securities under Title 11 of the United States Code or
any other applicable Federal or state bankruptcy, insolvency or other similar law, or in case a receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar official shall have been appointed for or taken possession of
the Issuer or its property or such other obligor or its property, or in case of any other comparable judicial proceedings relative
to the Issuer or other obligor upon the Securities of any series, or to the creditors or property of the Issuer or such other obligor,
the Trustee, irrespective of whether the principal of any 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 pursuant to the provisions of this Section, shall
be entitled and empowered, by intervention in such proceedings or otherwise:
(i) to
file and prove a claim or claims for the whole amount of principal and interest (or, if the Securities of any series are Original
Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) owing and unpaid
in respect of the Securities of any series, 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 reasonable compensation to the Trustee and each predecessor trustee,
and their respective agents, attorneys and counsel, and for reimbursement of all expenses and liabilities incurred, and all advances
made, by the Trustee and each predecessor trustee, except as a result of negligence or bad faith) and of the Security Holders allowed
in any judicial proceedings relative to the Issuer or other obligor upon the Securities of any series, or to the creditors or property
of the Issuer or such other obligor,
(ii) unless
prohibited by applicable law and regulations, to vote on behalf of the Holders of the Securities of any series in any election
of a trustee or a standby trustee in arrangement, reorganization, liquidation or other bankruptcy or insolvency proceedings or
person performing similar functions in comparable proceedings, and
(iii) to
collect and receive any moneys or other property payable or deliverable on any such claims, and to distribute all amounts received
with respect to the claims of the Security Holders and of the Trustee on their behalf; and any trustee, receiver or liquidator,
custodian or other similar official is hereby authorized by each of the Security Holders to make payments to the Trustee, and,
in the event that the Trustee shall consent to the making of payments directly to the Security Holders, to pay to the Trustee such
amounts as shall be sufficient to cover reasonable compensation to the Trustee, each predecessor trustee and their respective agents,
attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor
trustee except as a result of negligence or bad faith and all other amounts due to the Trustee or any predecessor trustee pursuant
to Section 6.06.
Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or vote for or accept or adopt on behalf of any Security Holder
any plan of reorganization, arrangement, adjustment or composition affecting the Securities of any series or the rights of any
Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Security Holder in any such proceeding except,
as aforesaid, to vote for the election of a trustee in bankruptcy or similar person.
All rights of action and
of asserting claims under this Indenture, or under any of the Securities of any series, may be enforced by the Trustee without
the possession of any of the Securities of such series or the production thereof on any trial or other proceedings relative thereto,
and any such action or proceedings instituted by the Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment, subject to the payment of the expenses, disbursements and compensation of the Trustee, each predecessor
trustee and their respective agents and attorneys, shall be for the ratable benefit of the Holders of the Securities in respect
of which such action was taken.
In any proceedings brought
by the Trustee (and also any proceedings involving the interpretation of any provision of this Indenture to which the Trustee shall
be a party), the Trustee shall be held to represent all the Holders of the Securities in respect to which such action was taken,
and it shall not be necessary to make any Holders of such Securities parties to any such proceedings.
Section 5.03 Application
of Proceeds. Any moneys collected by the Trustee pursuant to this Article in respect of any series shall be applied in the
following order at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal
or interest, upon presentation of the several Securities in respect of which monies have been collected and stamping (or otherwise
noting) thereon the payment, or issuing Securities of such series in reduced principal amounts in exchange for the presented Securities
of like series if only partially paid, or upon surrender thereof if fully paid:
| | FIRST: To the payment of all amounts due to the Trustee or any predecessor trustee pursuant to
Section 6.06; |
| | SECOND: In case the principal of the Securities of such series in respect of which moneys have
been collected shall not have become and be then due and payable, to the payment of interest on the Securities of such series in
default in the order of the maturity of the installments of such interest, with interest (to the extent that such interest has
been collected by the Trustee) upon the overdue installments of interest, to the extent permitted by applicable law, at the same
rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in such Securities,
such payments to be made ratably to the Persons entitled thereto, without discrimination or preference; |
| | THIRD: In case the principal of the Securities of such series in respect of which moneys have been
collected shall have become and shall be then due and payable, to the payment of the whole amount then owing and unpaid upon all
the Securities of such series for principal and interest, with interest upon the overdue principal, and (to the extent that such
interest has been collected by the Trustee) upon overdue installments of interest, to the extent permitted by applicable law, at
the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the
Securities of such series; and in case such moneys shall be insufficient to pay in full the whole amount so due and unpaid upon
the Securities of such series, then to the payment of such principal and interest or Yield to Maturity, without preference or priority
of principal over interest or Yield to Maturity, or of interest or Yield to Maturity over principal, or of any installment of interest
over any other installment of interest, or of any Security of such series over any other Security of such series, ratably to the
aggregate of such principal and accrued and unpaid interest or Yield to Maturity; and |
| | FOURTH: To the payment of the remainder, if any, to the Issuer or any other Person lawfully entitled
thereto. |
Section 5.04 Suits
for Enforcement. In case an Event of Default has occurred, has not been waived and is continuing, the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, either at law or in equity or in bankruptcy or otherwise, whether
for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted
in this Indenture or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.
Section 5.05 Restoration
of Rights on Abandonment of Proceedings. In case the Trustee shall have proceeded to enforce any right under this Indenture
and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adversely to the Trustee,
then and in every such case (subject to any determination in such proceeding) the Issuer and the Trustee shall be restored respectively
to their former positions and rights hereunder, and all rights, remedies and powers of the Issuer, the Trustee and the Security
Holders shall continue as though no such proceedings had been taken.
Section 5.06 Limitations
on Suits by Security Holders. No Holder of any Security of any series shall have any right by virtue or by availing of any
provision of this Indenture or any Securities to institute any action or proceeding at law or in equity or in bankruptcy or otherwise
upon or under or with respect to this Indenture or any Securities of any series, or for the appointment of a trustee, receiver,
liquidator, custodian or other similar official or for any other remedy hereunder, unless such Holder previously shall have given
to the Trustee written notice of default and of the continuance thereof, as hereinbefore provided, and unless also the Holders
of not less than 25% in aggregate principal amount of the Securities of such series then Outstanding shall have made written request
upon the Trustee to institute such action or proceedings in its own name as trustee hereunder and shall have offered to the Trustee
such reasonable indemnity as it may require against the costs, expenses and liabilities to be incurred therein or thereby and the
Trustee for 60 days after its receipt of such notice, request and offer of indemnity shall have failed to institute any such action
or proceeding and no direction inconsistent with such written request shall have been given to the Trustee pursuant to Section
5.09; it being understood and intended, and being expressly
covenanted by the Holder of every Security
with every other Holder and the Trustee, that no one or more Holders of Securities of any series shall have any right in any manner
whatever by virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of any other such
Holder of Securities, or to obtain or seek to obtain priority over or preference to any other such Holder or to enforce any right
under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders of Securities
of the applicable series. For the protection and enforcement of the provisions of this Section, each and every Security Holder
and the Trustee shall be entitled to such relief as can be given either at law or in equity.
Section 5.07 Unconditional
Right of Security Holders to Institute Certain Suits. Notwithstanding any other provision in this Indenture and any provision
of any Security, the right of any Holder of any Security to receive payment of the principal of and interest on such Security on
or after the respective due dates expressed in such Security in accordance with the terms hereof and thereof, or to institute suit
for the enforcement of any such payment on or after such respective dates, or for the enforcement of such conversion right, shall
not be impaired or affected without the consent of such Holder; it being understood and intended, and being expressly covenanted
by the Holder of every Security with every other Holder and the Trustee, that no one or more Holders of Securities of any series
shall have any right in any manner whatever by virtue or by availing of any provision of this Indenture to affect, disturb or prejudice
the rights of any other such Holder of Securities, or to obtain or seek to obtain priority over or preference to any other such
Holder or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common
benefit of all Holders of Securities of the applicable series. For the protection and enforcement of the provisions of this Section,
each and every Security Holder and the Trustee shall be entitled to such relief as can be given either at law or in equity.
Section 5.08 Powers
and Remedies Cumulative; Delay or Omission Not Waiver of Default. Except as provided in Section 5.06, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders of Securities is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
No delay or omission of
the Trustee or of any Holder of Securities to exercise any right or power accruing upon any Event of Default occurring and continuing
as aforesaid shall impair any such right or power or shall be construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to Section 5.06, every power and remedy given by this Indenture or by law to the Trustee or to the Holders
of Securities may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders of
Securities.
Section 5.09 Control
by Holders of Securities. The Holders of a majority in aggregate principal amount of the Securities of each series affected
(with each series voting as a separate class) at the time Outstanding 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 by this Indenture; provided, that such direction shall not be otherwise than in accordance
with law and the provisions of this Indenture and provided, further, that (subject to the provisions of Section 6.01) the Trustee
shall have the right to decline to follow any such direction if the Trustee, being advised by counsel, shall determine that the
action or proceeding so directed may not lawfully be taken or if the Trustee in good faith by its board of directors, the executive
committee, or a trust committee of directors or Responsible Officers of the Trustee shall determine that the action or proceedings
so directed would involve the Trustee in personal liability or if the Trustee in good faith shall so determine that the actions
or forbearances specified in or pursuant to such direction would be unduly prejudicial to the interests of Holders of the Securities
of all series so affected not joining in the giving of said direction, it being understood that (subject to Section 6.01) the Trustee
shall have no duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the
right of the Trustee in its discretion to take any action deemed proper by the Trustee and which is not inconsistent with such
direction or directions by Security Holders.
Section 5.10 Waiver
of Past Defaults. Prior to the declaration of the acceleration of the maturity of the Securities of any series as provided
in Section 5.01, the Holders of a majority in aggregate principal amount of the Securities of such series at the time Outstanding,
by notice to the Trustee, may on behalf of the Holders of all the Securities of such series waive any existing default in the performance
of any of the covenants contained herein or established pursuant to Section 2.03 with respect to such series and its consequences,
except a default in the payment of the principal of, or interest on, any of the Securities of that series as and when the same
shall become due by the terms of such Securities. In the case of any such waiver, the Issuer, the Trustee and the Holders of the
Securities of such series shall be restored to their former positions and rights hereunder, respectively, such default shall cease
to exist and be deemed to have been cured and not to have occurred, and any Event of Default arising therefrom shall be deemed
to have been cured, and not to have occurred for every purpose of this Indenture; but no such waiver shall extend to any subsequent
or other default or Event of Default or impair any right consequent thereon.
Section 5.11 Trustee
to Give Notice of Default. The Trustee shall, within 90 days after the occurrence of a default with respect to the Securities
of any series, give notice of all defaults with respect to that series known to the Trustee to all Holders of Securities of such
series in the manner and to the extent provided in Section 4.03, unless in each case such defaults shall have been cured before
the mailing or publication of such notice (the term “defaults” for the purpose of this Section being hereby defined
to mean any event or condition which is, or with notice or lapse of time or both would become, an Event of Default); provided,
that, except in the case of default in the payment of the principal of or interest on any of the Securities of such series, or
in the payment of any sinking fund installment on 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 or trustees and/or Responsible Officers
of the Trustee in good faith determines that the withholding of such notice is in the interests of the Security Holders of such
series.
Section 5.12 Right
of Court to Require Filing of Undertaking to Pay Costs. All parties to this Indenture agree, and each Holder of any Security
by his or her acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant
in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions
of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Security Holder or group of
Security Holders of any series holding in the aggregate more than 10% in aggregate principal amount of the Securities of such series,
or to any suit instituted by any Security Holder for the enforcement of the payment of the principal of or interest on any Security
of such series, on or after the respective due dates expressed in such Security or established pursuant to this Indenture.
Section 5.13 Waiver
of Usury, Stay or Extension Laws. The Issuer 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 usury, 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 Issuer (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
Section 5.14 Undertaking
for Costs. All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture,
or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit
of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable
attorneys’ fees and expenses, against any party litigant in such suit having due regard to the merits and good faith of the
claims or
defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group
of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities of any series, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of (or premium or make-whole amount, if any) or interest
on any Security on or after the respective stated maturities expressed in such Security (or, in the case of redemption, on or after
the redemption date).
ARTICLE 6
CONCERNING THE TRUSTEE
Section 6.01 Duties
and Responsibilities of the Trustee; During Default; Prior to Default. With respect to the Holders of any series of Securities
issued hereunder, the Trustee, prior to the occurrence of an Event of Default with respect to the Securities of a particular series
and after the curing or waiving of all Events of Default which may have occurred with respect to such series, undertakes to perform
such duties and only such duties as are specifically set forth in this Indenture. In case an Event of Default with respect to the
Securities of a series has occurred (which has not been cured or waived), 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.
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.
Section 6.02 Certain
Rights of the Trustee. In furtherance of and subject to the Trust Indenture Act of 1939 and subject to Section 6.01:
(a) in
the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; but, in the case of any such statements, 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;
(b) the
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Responsible Officers of the
Trustee, 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 5.09 relating to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(d) none
of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise of any of its rights or powers if there shall be
reasonable ground for believing that the repayment of such funds or adequate indemnity against such liability is not reasonably
assured to it;
(e) the
Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate or
any other certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture, note, security
or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(f) any
request, direction, order or demand of the Issuer mentioned herein shall be sufficiently evidenced by an Officer’s Certificate
(unless other evidence in respect thereof be herein specifically
prescribed); and any resolution of
the Board of Directors may be evidenced to the Trustee by a copy thereof certified by the secretary or an assistant secretary of
the Issuer;
(g) the
Trustee may consult with counsel and any advice or Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel;
(h) the
Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Indenture at the request, order
or direction of any of the Security Holders pursuant to the provisions of this Indenture, unless such Security Holders shall have
offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred therein
or thereby;
(i) the
Trustee shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(j) prior
to the occurrence of an Event of Default hereunder and after the curing or waiving of all Events of Default, 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, consent, order, approval, appraisal, bond, debenture, note, security, or other paper or document
unless requested in writing so to do by the Holders of not less than a majority in aggregate principal amount of the Securities
of all series affected then Outstanding; provided, that, if the payment within a reasonable time to the Trustee of the costs, expenses
or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require reasonable indemnity
against such expenses or liabilities as a condition to proceeding; the reasonable expenses of every such investigation shall be
paid by the Issuer or, if paid by the Trustee or any predecessor trustee, shall be repaid by the Issuer upon demand; and
(k) 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 not regularly in its employ and the Trustee shall not be responsible for any misconduct or negligence on the part
of any such agent or attorney appointed with due care by it hereunder.
Section 6.03 Trustee
Not Responsible for Recitals, Disposition of Securities or Application of Proceeds Thereof. The recitals contained herein and
in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements of the Issuer, and
the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representation as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee shall not be accountable for the use or application by the Issuer
of any of the Securities or of the proceeds thereof.
Section 6.04 Trustee
and Agents May Hold Securities; Collections, Etc. The Trustee or any agent of the Issuer or the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not the Trustee
or such agent and may otherwise deal with the Issuer and receive, collect, hold and retain collections from the Issuer with the
same rights it would have if it were not the Trustee or such agent.
Section 6.05 Moneys
Held by Trustee. Subject to the provisions of Section 10.04 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other
funds except to the extent required by mandatory provisions of law. Neither the Trustee nor any agent of the Issuer or the Trustee
shall be under any liability for interest on any moneys received by it hereunder.
Section 6.06 Compensation
and Indemnification of Trustee and Its Prior Claim. The Issuer covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, such reasonable
compensation (which shall not be limited by
any provision of law in regard to the compensation of a trustee of an express trust) as the Issuer and the Trustee may from time
to time agree in writing and, except as otherwise expressly provided herein, the Issuer covenants and agrees to pay or reimburse
the Trustee and each predecessor trustee upon its request for all reasonable expenses, disbursements and advances incurred or made
by or on behalf of it in accordance with any of the provisions of this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and of all agents and other persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The Issuer also covenants to indemnify the Trustee and each
predecessor trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance or administration of this Indenture or the trusts hereunder and
its duties hereunder, including the costs and expenses of defending itself against or investigating any claim of liability in the
premises.
The obligations of the
Issuer under this Section to compensate and indemnify the Trustee and each predecessor trustee and to pay or reimburse the Trustee
and each predecessor trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture. Such additional indebtedness shall be a senior claim to that of the Securities
upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the Holders
of particular Securities, and the Securities are hereby subordinated to such senior claim.
Section 6.07 Right
of Trustee to Rely on Officer’s Certificate, Etc. Subject to Sections 6.01 and 6.02, whenever in the administration of
the trusts of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking
or suffering or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed)
may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and established
by an Officer’s Certificate delivered to the Trustee, and such certificate, in the absence of negligence or bad faith on
the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions
of this Indenture upon the faith thereof.
Section 6.08 Disqualification;
Conflicting Interests. If the Trustee has or shall acquire any “conflicting interest” within the meaning of Section
310(b) of the Trust Indenture Act, the Trustee and the Issuer shall in all respects comply with the provisions of Section 310(b)
of the Trust Indenture Act.
Section 6.09 Persons
Eligible for Appointment as Trustee. The Trustee for each series of Securities hereunder shall at all times be a corporation
having a combined capital and surplus of at least $50,000,000 and shall be eligible in accordance with the provisions of Section
310(a) of the Trust Indenture Act of 1939. If such corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of a Federal, State or District of Columbia supervising or examining authority, then, for the purposes of
this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published.
Section 6.10 Resignation
and Removal; Appointment of Successor Trustee. (a) The Trustee, or any trustee or trustees hereafter appointed, may at any
time resign with respect to one or more or all series of Securities by giving written notice of resignation to the Issuer and by
mailing notice of such resignation to the Holders of then Outstanding Securities of each series affected at their addresses as
they shall appear on the Security register. Upon receiving such notice of resignation, the Issuer shall promptly appoint a successor
trustee or trustees with respect to the applicable series by written instrument in duplicate, executed by authority of the Board
of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee or
trustees. If no successor trustee shall have been so appointed with respect to any series and have accepted appointment within
30 days after the mailing of such notice of resignation, the resigning trustee may petition any court of competent jurisdiction
for the appointment of a successor trustee, or any Security Holder who has been a bona fide Holder of a Security or Securities
of the applicable series for at least six months may, on behalf of himself or herself and all others similarly situated, petition
any such court for the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, appoint a successor trustee.
(b) In
case at any time any of the following shall occur:
(i) the
Trustee shall fail to comply with the provisions of Section 310(b) of the Trust Indenture Act of 1939 with respect to any series
of Securities after written request therefor by the Issuer or by any Security Holder who has been a bona fide Holder of a Security
or Securities of such series for at least six months; or
(ii) the
Trustee shall cease to be eligible in accordance with the provisions of Section 310(a) of the Trust Indenture Act of 1939 and shall
fail to resign after written request therefor by the Issuer or by any Security Holder; or
(iii) the
Trustee shall become incapable of acting with respect to any series of Securities, or shall be adjudged bankrupt or insolvent,
or a receiver or liquidator 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 Issuer
may remove the Trustee with respect to the applicable series of Securities and appoint a successor trustee for such series by written
instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee
so removed and one copy to the successor trustee, or, (B) subject to Section 315(e) of the Trust Indenture Act of 1939, any Security
Holder who has been a bona fide Holder of a Security or Securities of such series for at least six months may on behalf of himself
or herself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee with respect to such series. Such court may thereupon, after such notice, if any, as it may
deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The
Holders of a majority in aggregate principal amount of the Securities of each series at the time Outstanding may at any time remove
the Trustee with respect to Securities of such series and, with the consent of the Issuer, appoint a successor trustee with respect
to the Securities of such series by delivering to the Trustee so removed, to the successor trustee so appointed and to the Issuer
the evidence provided for in Section 7.01 of the action in that regard taken by the Security Holders.
(d) Any
resignation or removal of the Trustee with respect to any series and any appointment of a successor trustee with respect to such
series pursuant to any of the provisions of this Section 6.10 shall become effective upon acceptance of appointment by the successor
trustee as provided in Section 6.11.
Section 6.11 Acceptance
of Appointment by Successor Trustee. Any successor trustee appointed as provided in Section 6.10 shall execute and deliver
to the Issuer and to its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee with respect to all or any applicable series shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become vested with all rights, powers, duties and obligations with respect to
such series of its predecessor hereunder, with like effect as if originally named as trustee for such series hereunder; but, nevertheless,
on the written request of the Issuer or of the successor trustee, upon payment of its charges then unpaid, the trustee ceasing
to act shall, subject to Section 10.04, pay over to the successor trustee all moneys at the time held by it hereunder and shall
execute and deliver an instrument transferring to such successor trustee all such rights, powers, duties and obligations. Upon
request of any such successor trustee, the Issuer shall execute any and all instruments in writing for more fully and certainly
vesting in and confirming to such successor trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless,
retain a prior claim upon all property or funds held or collected by such trustee to secure any amounts then due it pursuant to
the provisions of Section 6.06.
If a successor trustee
is appointed with respect to the Securities of one or more (but not all) series, the Issuer, the predecessor trustee and each successor
trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental
hereto which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the predecessor trustee with respect to the Securities of any series as to which the predecessor trustee is not retiring
shall continue to be vested in the predecessor trustee, and shall add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, it being understood
that nothing herein or in such supplemental indenture shall constitute such trustees co-trustees of the same trust and that each
such trustee shall be trustee of a trust or trusts under separate indentures.
No successor trustee with
respect to any series of Securities shall accept appointment as provided in this Section 6.11 unless at the time of such acceptance
such successor trustee shall be qualified under the provisions of Section 310(b) of the Trust Indenture Act of 1939 and eligible
under the provisions of Section 310(a) of the Trust Indenture Act of 1939.
Upon acceptance of appointment
by any successor trustee as provided in this Section 6.11, the Issuer shall mail notice thereof to the Holders of Securities of
each series affected, by mailing such notice to such Holders at their addresses as they shall appear on the Security register.
If the acceptance of appointment is substantially contemporaneous with the resignation, then the notice called for by the preceding
sentence may be combined with the notice called for by Section 6.10. If the Issuer fails to mail such notice within ten days after
acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be given at the expense of
the Issuer.
Section 6.12 Merger,
Conversion, Consolidation or Succession to Business of Trustee. 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 the corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder; provided, that such corporation shall be qualified under the provisions of Section 310(b) of the Trust Indenture Act
of 1939 and eligible under the provisions of Section 310(a) of the Trust Indenture Act of 1939, without the execution or filing
of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
In case, at the time such
successor to the Trustee shall succeed to the trusts created by this Indenture, any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor
trustee and deliver such Securities so authenticated; and, in case at that time any of the Securities of any series shall not have
been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder
or in the name of the successor trustee; and in all such cases such certificate shall have the full force which it is anywhere
in the Securities of such series or in this Indenture provided that the certificate of the Trustee shall have; provided, that the
right to adopt the certificate of authentication of any predecessor trustee or to authenticate Securities of any series in the
name of any predecessor trustee shall apply only to its successor or successors by merger, conversion or consolidation.
Section 6.13 Preferential
Collection of Claims Against the Issuer. The Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding
any creditor relationship described in Section 311(b) of the Trust Indenture Act. A Trustee who has resigned or been removed shall
be subject to Section 311(a) of the Trust Indenture Act to the extent included therein.
ARTICLE 7
CONCERNING THE SECURITY HOLDERS
Section 7.01 Evidence
of Action Taken by Security Holders. Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in principal amount of the Security Holders of any or
all series may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such specified
percentage of Security Holders in
person or by agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are
delivered to the Trustee. Proof of execution of any instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and (subject to Sections 6.01 and 6.02) conclusive in favor of the Trustee and the Issuer, if made
in the manner provided in this Article.
Section 7.02 Proof
of Execution of Instruments and of Holding of Securities. Subject to Sections 6.01 and 6.02, the execution of any instrument
by a Holder or his agent or proxy may be proved in accordance with such reasonable rules and regulations as may be prescribed by
the Trustee or in such manner as shall be satisfactory to the Trustee. The holding of Securities shall be proved by the Security
register or by a certificate of the registrar thereof. The Issuer may set a record date for purposes of determining the identity
of Holders of any series entitled to vote or consent to any action referred to in Section 7.01, which record date may be set at
any time or from time to time by notice to the Trustee, for any date or dates (in the case of any adjournment or reconsideration)
not more than 60 days nor less than five days prior to the proposed date of such vote or consent, and thereafter, notwithstanding
any other provisions hereof, only Holders of such series of record on such record date shall be entitled to so vote or give such
consent or revoke such vote or consent. Notice of such record date may be given before or after any request for any action referred
to in Section 7.01 is made by the Issuer.
Section 7.03 Holders
to Be Treated as Owners. The Issuer, the Trustee and any agent of the Issuer or of the Trustee may deem and treat the Person
in whose name any Security shall be registered upon the Security register for such series as the absolute owner of such Security
(whether or not such Security shall be overdue and notwithstanding any notation of ownership or other writing thereon) for the
purpose of receiving payment of or on account of the principal of, and, subject to the provisions of this Indenture, interest on,
such Security and for all other purposes; and neither the Issuer nor the Trustee nor any agent of the Issuer or the Trustee shall
be affected by any notice to the contrary. All such payments so made to any such Person, or upon his or her order, shall be valid,
and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for moneys payable.
Section 7.04 Securities
Owned by Issuer Deemed Not Outstanding. In determining whether the Holders of the requisite aggregate principal amount of Outstanding
Securities of any or all series have concurred in any direction, consent or waiver under this Indenture, Securities which are owned
by the Issuer or any other obligor on the Securities with respect to which such determination is being made or by any Person directly
or indirectly controlling or controlled by or under direct or indirect common control with the Issuer or any other obligor on the
Securities with respect to which such determination is being made shall be disregarded and deemed not to be Outstanding for the
purpose of any such determination, except that, for the purpose of determining whether the Trustee shall be protected in relying
on any such direction, consent or waiver, only Securities which the Trustee knows are so owned shall be so disregarded. Securities
so owned which have been pledged in good faith may be regarded as Outstanding 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 Issuer or any other
obligor upon the Securities or any Person directly or indirectly controlling or controlled by or under direct or indirect common
control with the Issuer or any other obligor on the Securities. In case of a dispute as to such right, the advice of counsel shall
be full protection in respect of any decision made by the Trustee in accordance with such advice.
Section 7.05 Right
of Revocation of Action Taken. At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 7.01,
of the taking of any action by the Holders of the percentage in aggregate principal amount of the Securities of any or all series,
as the case may be, specified in this Indenture in connection with such action, any Holder of a Security the serial number of which
is shown by the evidence to be included among the serial numbers of the Securities the Holders of which have consented to such
action may, by filing written notice at the Corporate Trust Office and upon proof of holding as provided in this Article, revoke
such action so far as concerns such Security. Except as aforesaid, any such action taken by the Holder of any Security shall be
conclusive and binding upon such Holder and upon all future Holders and owners of such Security and of any Securities issued in
exchange or substitution therefor or on registration of transfer thereof, irrespective of whether or not any notation in regard
thereto is made upon any such Security. Any action taken by the Holders of the percentage in aggregate principal amount of the
Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action
shall be conclusively binding upon the Issuer, the Trustee and the Holders of all the Securities affected by such action.
ARTICLE 8
SUPPLEMENTAL INDENTURES
Section 8.01 Supplemental
Indentures Without Consent of Security Holders. The Issuer, when authorized by a resolution of its Board of Directors, and
the Trustee may from time to time and at any time, without the consent of any of the Security Holders, enter into an indenture
or indentures supplemental hereto in form satisfactory to the Trustee for one or more of the following purposes:
(a) to
convey, transfer, assign, mortgage or pledge to the Trustee as security for the Securities of one or more series any property or
assets;
(b) to
evidence the succession of a corporation, limited liability company, partnership or trust to the Issuer, or successive successions,
and the assumption by such successor of the covenants, agreements and obligations of the Issuer pursuant to Article 9;
(c) to
add to the covenants of the Issuer such further covenants, restrictions, conditions or provisions as its Board of Directors and
the Trustee shall consider to be for the protection of the Holders of Securities, and to make the occurrence, or the occurrence
and continuance, of a default in any such additional covenants, restrictions, conditions or provisions an Event of Default permitting
the enforcement of all or any of the several remedies provided in this Indenture as herein set forth; provided, that in respect
of any such additional covenant, restriction, condition or provision such supplemental indenture may provide for a particular period
of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide for
an immediate enforcement upon such an Event of Default or may limit the remedies available to the Trustee upon such an Event of
Default or may limit the right of the Holders of a majority in aggregate principal amount of the Securities of such series to waive
such an Event of Default;
(d) to
cure any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other provision
herein, to conform this Indenture to or any supplemental indenture to the description of the Securities set forth in any prospectus
or prospectus supplement related to such series of Securities, 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, provided such provisions shall
not adversely affect the interests of the Holders of Securities of any series or any related coupons in any material respect;
(e) to
provide for or add guarantors for the Securities of one or more series;
(f) to
establish the form or terms of Securities of any series as permitted by Sections 2.01 and 2.03;
(g) 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 6.11;
(h) to
add to, delete from or revise the conditions, limitations and restrictions on the authorized amount, terms, purposes of issue,
authentication and delivery of any series of Securities, as herein set forth, provided that any such deletion or revision shall
become effective only when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture
which is entitled to the benefit of such provision;
(i) to
make any change to the Securities of any series so long as no Securities of such series are Outstanding;
(j) to
conform any provision in this Indenture to the requirements of the Trust Indenture Act; and
(k) to
make any other change that does not adversely affect the interests of the Holders of the Securities in any material respect.
The Trustee shall join
with the Issuer in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations
which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental indenture which affects the Trustee’s own rights,
duties or immunities under this Indenture or otherwise.
Any supplemental indenture
authorized by the provisions of this Section may be executed without the consent of the Holders of any of the Securities at the
time Outstanding, notwithstanding any of the provisions of Section 8.02.
Section 8.02 Supplemental
Indentures With Consent of Security Holders. With the consent (evidenced as provided in Article 7) of the Holders of not less
than a majority in aggregate principal amount of the Securities at the time Outstanding of one or more series affected by such
supplemental indenture (voting as separate series), the Issuer, when authorized by a resolution of the Board of Directors, and
the Trustee may, from time to time and at any time, 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 any supplemental
indenture or of modifying in any manner the rights of the Holders of the Securities of each such consenting series; provided, that
no such supplemental indenture shall, without the consent of the Holder of each Security so affected, (a) extend the final maturity
of any Security, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon,
or reduce any amount payable on redemption thereof, or make the principal thereof (including any amount in respect of original
issue discount) or interest thereon payable in any currency other than that provided in the Securities or in accordance with the
terms thereof, or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon
an acceleration of the maturity thereof pursuant to Section 5.01 or the amount thereof provable in bankruptcy pursuant to Section
5.02, or waive a default in the payment of principal of any Security or interest thereon or change a provision related to the waiver
of past defaults or changes or impair the right of any Security Holder to institute suit for the payment or conversion thereof
or, if the Securities provide therefor, any right of repayment at the option of the Security Holder, or (b) modify any of the provisions
of this section except to increase any required percentage or to provide that certain other provisions cannot be modified or waived
without the consent of the Holder of each Security so affected, or (c) reduce the aforesaid percentage of Securities of any series,
the consent of the Holders of which is required for any such supplemental indenture or the consent of Holders of which is required
for any modification, amendment or waiver of compliance with certain provisions of this Indenture or certain defaults hereunder
and their consequences provided for in this Indenture.
A supplemental indenture
which changes or eliminates any covenant, Event of Default or other provision of this Indenture (1) that has been expressly included
solely for the benefit of one or more particular series of Securities, if any, or (2) which modifies the rights of Holders of Securities
of one or more series with respect to any covenant, Event of Default or provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series with respect to which such covenant, Event of Default or other
provision has not be modified.
Upon the request of the
Issuer, accompanied by a Board Resolution authorizing the execution of any such supplemental indenture, and upon the filing with
the Trustee of evidence of the consent of Security Holders as
aforesaid and other documents, if any, required
by Section 7.01, the Trustee shall join with the Issuer in the execution of such supplemental indenture unless such supplemental
indenture affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee
may in its discretion, but shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary
for the consent of the Security Holders under this Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution
by the Issuer and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Trustee shall give
a notice thereof to the Holders of then Outstanding Securities of each series affected thereby, by mailing a notice thereof by
first-class mail to such Holders at their addresses as they shall appear on the Security register, and in each case such notice
shall set forth in general terms the substance of such supplemental indenture. Any failure of the Trustee to mail such notice,
or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
Section 8.03 Effect
of Supplemental Indenture. Upon the execution of any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Trustee, the Issuer and the Holders of Securities of each series affected thereby
shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions
of this Indenture for any and all purposes.
Section 8.04 Documents
to Be Given to Trustee. The Trustee, subject to the provisions of Sections 6.01 and 6.02, may receive an Officer’s Certificate
and an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant to this Article 8 complies with
the applicable provisions of this Indenture.
Section 8.05 Notation
on Securities in Respect of Supplemental Indentures. Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to the provisions of this Article may bear a notation in form approved by the Trustee for
such series as to any matter provided for by such supplemental indenture or as to any action taken by Security Holders. If the
Issuer or the Trustee shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee
and the Board of Directors, to any modification of this Indenture contained in any such supplemental indenture may be prepared
by the Issuer, authenticated by the Trustee and delivered in exchange for the Securities of such series then Outstanding.
ARTICLE 9
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 9.01 Issuer
May Consolidate, Etc., on Certain Terms. The Issuer shall not consolidate with or merge into any other Person (in a transaction
in which the Issuer is not the surviving corporation) or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless (a) the Person formed by such consolidation or into which the Issuer is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and assets of the Issuer substantially as an entirety (i) shall
be a corporation, (ii) shall be organized and validly existing under the laws of the United States of America, any State thereof
or the District of Columbia and (iii) shall expressly assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of and interest on all the Securities
and the performance or observance of every covenant of this Indenture on the part of the Issuer to be performed, by supplemental
indenture satisfactory in form to the Trustee, executed and delivered to the Trustee, by the Person formed by such consolidation
or into which the Issuer shall have been merged or by the Person which shall have acquired the Issuer’s assets; (b) immediately
after giving effect to such transaction and treating any
indebtedness which becomes an obligation of
the Issuer or any Subsidiary as a result of such transaction as having been incurred by the Issuer or such Subsidiary at the time
of 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 (c) the Issuer 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, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
For purposes of the foregoing,
any sale, assignment, transfer, lease or other conveyance of all or any of the properties and assets of one or more Subsidiaries
of the Issuer (other than to the Issuer or another Subsidiary), which, if such properties and assets were owned by the Issuer,
would constitute all or substantially all of the Issuer’s properties and assets, shall be deemed to be the transfer of all
or substantially all of the properties and assets of the Issuer.
The restrictions in this
Section 9.01 shall not apply to (i) the merger or consolidation of the Issuer with one of its Affiliates, if the Board of Directors
determines in good faith that the purpose of such transaction is principally to change the Issuer’s State of incorporation
or convert the Issuer’s form of organization to another form, or (ii) the merger of the Issuer with or into a single direct
or indirect wholly-owned Subsidiary.
Nothing contained in this
Article shall apply to, limit or impose any requirements upon the consolidation or merger of any Person into the Issuer where the
Issuer is the survivor of such transaction, or the acquisition by the Issuer, by purchase or otherwise, of all or any part of the
property of any other Person (whether or not affiliated with the Issuer).
Section 9.02 Successor
Issuer Substituted. Upon any consolidation of the Issuer with, or merger of the Issuer into, any other Person or any conveyance,
transfer or lease of the properties and assets of the Issuer substantially as an entirety in accordance with Section 9.01, the
successor Person formed by such consolidation or into which the Issuer 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 Issuer under this Indenture with
the same effect as if such successor Person had been named as the Issuer herein, and thereafter, except in the case of a lease,
the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities.
In case of any such consolidation, merger,
sale, lease or conveyance, such changes in phraseology and form (but not in substance) may be made in the Securities thereafter
to be issued as may be appropriate.
ARTICLE 10
SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE;
UNCLAIMED MONEYS
Section 10.01 Satisfaction
and Discharge of Indenture; Defeasance. (a) If at any time
(i) the
Issuer shall have paid or caused to be paid the principal of and interest on all the Securities of any series Outstanding hereunder
(other than Securities of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided
in Section 2.09) as and when the same shall have become due and payable, or
(ii) the
Issuer shall have delivered to the Trustee for cancellation all Securities of any series theretofore authenticated (other than
any Securities of such series which shall have been destroyed, lost or stolen and which shall have been replaced or paid as provided
in Section 2.09) or
(iii) in
the case of any series of Securities the exact amount (including the currency of payment) of principal of and interest due on which
on the dates referred to in clause (B) below can be determined at the time of making the deposit referred to in such clause,
(A) all
the Securities of such series not theretofore delivered to the Trustee for cancellation shall have become due and payable, or are
by their terms to become due and payable within one year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and
(B) the
Issuer shall have irrevocably deposited or caused to be deposited with the Trustee as trust funds the entire amount in cash (other
than moneys repaid by the Trustee or any paying agent to the Issuer in accordance with Section 10.04) or, in the case of any series
of Securities the payments on which may only be made in Dollars, U.S. Government Obligations maturing as to principal and interest
in such amounts and at such times as will insure the availability of cash sufficient to pay on any subsequent interest payment
date all interest due on such interest payment date on the Securities of such series and to pay at maturity or upon redemption
all Securities of such series (in each case other than any Securities of such series which shall have been destroyed, lost or stolen
and which shall have been replaced or paid as provided in Section 2.09) not theretofore delivered to the Trustee for cancellation,
including principal and interest due or to become due to such date of maturity, as the case may be, and if, in any such case (i),
(ii) or (iii), the Issuer shall also pay or cause to be paid all other sums payable hereunder by the Issuer, including amounts
due the Trustee pursuant to Section 6.06, with respect to Securities of such series, then this Indenture shall cease to be of further
effect with respect to Securities of such series (except as to (1) rights of registration of transfer, conversion and exchange
of Securities of such series and the Issuer’s right of optional redemption, (2) substitution of mutilated, defaced, destroyed,
lost or stolen Securities, (3) rights of Holders of Securities to receive, solely from the trust fund described in Section 10.01(a)(iii)(B),
payments of principal thereof and interest thereon, upon the original stated due dates therefor (but not upon acceleration) and
remaining rights of the Holders to receive, solely from the trust fund described in Section 10.01(a)(iii)(B), sinking fund payments,
if any, (4) the rights (including the Trustee’s rights under Section 10.05) and immunities of the Trustee hereunder and the
Trustee’s obligations under Sections 10.02 and 10.04 and (5) the obligations of the Issuer under Section 3.02), and the Trustee,
on demand of the Issuer accompanied by an Officer’s Certificate and an Opinion of Counsel which complies with Section 11.05
and at the cost and expense of the Issuer, shall execute proper instruments acknowledging such satisfaction of and discharging
this Indenture with respect to such series. The Issuer agrees to reimburse the Trustee for any costs or expenses thereafter reasonably
and properly incurred and to compensate the Trustee for any services thereafter reasonably and properly rendered by the Trustee
in connection with this Indenture or the Securities of such series.
(b) The
following subsection shall apply to the Securities of each series unless specifically otherwise provided in a Board Resolution,
Officer’s Certificate or indenture supplemental hereto provided pursuant to Section 2.03. In addition to the right to discharge
of the Indenture pursuant to subsection (a) above, the Issuer, at its option and at any time, by written notice by an officer delivered
to the Trustee, may elect to have all of its obligations discharged with all Outstanding Securities of a series (“Legal Defeasance”),
such discharge to be effective on the date that the conditions set forth in clauses (i) through (iv) and (vi) of Section 10.01(d)
are satisfied, and thereafter the Issuer shall be deemed to have paid and discharged the entire Debt on all the Securities of such
a series, and satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned
and this Indenture shall cease to be of further effect with respect to Securities of such series (except as to (1) rights of registration
of transfer, conversion and exchange of Securities of such series, (2) substitution of apparently mutilated, defaced, destroyed,
lost or stolen Securities, (3) rights of Holders of Securities to receive, solely from the trust fund described in Section 10.01(d)(i),
payments of principal thereof and interest thereon, upon the original stated due dates therefor (but not upon acceleration) and
remaining rights of the Holders to receive, solely from the trust fund described in Section 10.01(d)(i), sinking fund payments,
if any, (4) the rights
(including the Trustee’s rights
under Section 10.05) and immunities of the Trustee hereunder and the Trustee’s obligations with respect to the Securities
of such series under Sections 10.02 and 10.04 and (5) the obligations of the Issuer under Section 3.02).
(c) The
following subsection shall apply to the Securities of each series unless specifically otherwise provided in a Board Resolution,
Officer’s Certificate or indenture supplemental hereto provided pursuant to Section 2.03. In addition to the right to discharge
of the Indenture pursuant to subsection (a) and to Legal Defeasance pursuant to subsection (b), above, the Issuer, at its option
and at any time, by written notice executed by an officer delivered to the Trustee, may elect to have its obligations under any
covenant contained in this Indenture or in the Board Resolution or supplemental indenture relating to such series pursuant to Section
2.03 discharged with respect to all Outstanding Securities of a series, this Indenture and any indentures supplemental to this
Indenture with respect to such series (“Covenant Defeasance”), such discharge to be effective on the date the conditions
set forth in clauses (i) through (iii) and (v) through (vi) of Section 10.01(d) are satisfied, and such Securities shall thereafter
be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration of Security Holders
(and the consequences of any thereof) in connection with such covenants, but shall continue to be “Outstanding” for
all other purposes under this Indenture. For this purpose, such Covenant Defeasance means that, with respect to the Outstanding
Securities of a series, the Issuer may omit to comply with and shall have no liability in respect of any term, condition or limitation
set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant
or by reason of reference in any such covenant to any other provision herein or in any other document and such omission to comply
shall not constitute an Event of Default under Section 5.01(c) or otherwise, but except as specified in this Section 10.01(c),
the remainder of the Issuer’s obligations under the Securities of such series, this Indenture, and any indentures supplemental
to this Indenture with respect to such series shall be unaffected thereby.
(d) The
following shall be the conditions to the application of Legal Defeasance under subsection (b) or Covenant Defeasance under subsection
(c) to the Securities of the applicable series:
(i) the
Issuer irrevocably deposits or causes to be deposited in trust with the Trustee or, at the option of the Trustee, with a trustee
satisfactory to the Trustee and the Issuer under the terms of an irrevocable trust agreement in form and substance satisfactory
to the Trustee, cash or U.S. Government Obligations that will generate cash sufficient to pay principal of and interest on the
Outstanding Securities of such series to maturity or redemption, as the case may be, and to pay all other amounts payable by it
hereunder, provided that (A) the trustee of the irrevocable trust, if any, shall have been irrevocably instructed to pay such funds
or the proceeds of such U.S. Government Obligations to the Trustee and (B) the Trustee shall have been irrevocably instructed to
apply such funds or the proceeds of such U.S. Government Obligations to (x) the principal and interest on all Securities of such
series on the date that such principal or interest is due and payable and (y) any mandatory sinking fund payments on the day on
which such payments are due and payable in accordance with the terms of the Indenture and the Securities of such series, and the
Issuer shall also pay or cause to be paid all other amounts payable hereunder with respect to such series;
(ii) the
Issuer delivers to the Trustee an Officer’s Certificate stating that all conditions precedent specified herein relating to
Legal Defeasance or Covenant Defeasance, as the case may be, have been complied with, and an Opinion of Counsel to the same effect;
(iii) no
Event of Default under subsection (a), (b), (e) or (f) of Section 5.01 shall have occurred and be continuing, and no event which
with notice or lapse of time or both would become such an Event of Default shall have occurred and be continuing, on the date of
such deposit;
(iv) in
the event of an election for Legal Defeasance under subsection (b), the Issuer shall have delivered to the Trustee an Opinion of
Counsel stating that (A) the Issuer has received from, or there has been published by, the Internal Revenue Service a ruling or
(B) since the date of this instrument, there has been a change in the applicable Federal income tax law, in either case (A) or
(B) to the effect that, and based thereon such opinion shall confirm that, the Holders of such Securities will not recognize gain
or loss for Federal income tax purposes as a result of the deposit, defeasance and discharge to be effected with respect to such
Securities and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would be
the case if such deposit, defeasance and discharge were not to occur;
(v) in
the event of an election for Covenant Defeasance under subsection (c), the Issuer shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Holders of such Securities will not recognize gain or loss for Federal income tax purposes as
a result of the deposit and Covenant Defeasance to be effected with respect to such Securities and will be subject to Federal income
tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were
not to occur; and
(vi) notwithstanding
any other provisions of this subsection (d), such defeasance shall be effected in compliance with any additional or substitute
terms, conditions or limitations which may be imposed on the Issuer pursuant to Section 2.03.
After such irrevocable
deposit made pursuant to this Section 10.01(d) and satisfaction of the other conditions set forth in this subsection (d), the Trustee
upon request shall execute proper instruments acknowledging the discharge of the Issuer’s obligations pursuant to this Section
10.01.
Section 10.02 Application
by Trustee of Funds Deposited for Payment of Securities. Subject to Section 10.04, all moneys deposited with the Trustee (or
other trustee) pursuant to Section 10.01 shall be held in trust and applied by it to the payment, either directly or through any
paying agent (including the Issuer acting as its own paying agent), to the Holders of the particular Securities of such series
for the payment or redemption of which such moneys have been deposited with the Trustee, of all sums due and to become due thereon
for principal and interest; but such money need not be segregated from other funds except to the extent required by law.
Section 10.03 Repayment
of Moneys Held by Paying Agent. In connection with the satisfaction and discharge of this Indenture with respect to Securities
of any series, all moneys then held by any paying agent under the provisions of this Indenture with respect to such series of Securities
shall, upon demand of the Issuer, be repaid to it or paid to the Trustee and thereupon such paying agent shall be released from
all further liability with respect to such moneys.
Section 10.04 Return
of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or any
paying agent for the payment of the principal of, interest on or additional amounts in respect of any Security of any series and
not applied but remaining unclaimed for two years after the date upon which such principal, interest or additional amount shall
have become due and payable, shall be repaid to the Issuer by the Trustee for such series or such paying agent, and the Holder
of the Securities of such series shall thereafter look only to the Issuer for any payment which such Holder may be entitled to
collect, and all liability of the Trustee or any paying agent with respect to such moneys shall thereupon cease.
Section 10.05 Indemnity
for U.S. Government Obligations. The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to Section 10.01 or the principal or interest received
in respect of such obligations.
ARTICLE 11
MISCELLANEOUS PROVISIONS
Section 11.01 No
Recourse. No recourse under or upon any obligation, covenant or agreement of this Indenture, or of any Security, or for any
claim based thereon or otherwise in respect thereof, shall be had against any incorporator, stockholder, officer or director, past,
present or future as such, of the Issuer or of any predecessor or successor corporation, either directly or through the Issuer
or any such predecessor or successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise; it being expressly understood that this Indenture and the obligations issued hereunder
are solely corporate obligations, and that no such personal liability whatever shall attach to, or is or shall be incurred by,
the incorporators, stockholders, officers or directors as such, of the Issuer or of any predecessor or successor corporation, or
any of them, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants
or agreements contained in this Indenture or in any of the Securities or implied therefrom; and that any and all such personal
liability of every name and nature, either at common law or in equity or by constitution or statute, of, and any and all such rights
and claims against, every such incorporator, stockholder, officer or director as such, because of the creation of the indebtedness
hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the
Securities or implied therefrom, are hereby expressly waived and released as a condition of, and as a consideration for, the execution
of this Indenture and the issuance of such Securities.
Section 11.02 Provisions
of Indenture for the Sole Benefit of Parties and Holders of Securities. Nothing in this Indenture or in the Securities, expressed
or implied, shall give or be construed to give to any person, firm or corporation, other than the parties hereto and their successors
and the Holders of the Securities any legal or equitable right, remedy or claim under this Indenture or under any covenant or provision
herein contained, all such covenants and provisions being for the sole benefit of the parties hereto and their successors and of
the Holders of the Securities.
Section 11.03 Successors
and Assigns of Issuer Bound by Indenture. All the covenants, stipulations, promises and agreements contained in this Indenture
by or on behalf of the Issuer shall bind its successors and assigns, whether so expressed or not.
Section 11.04 Notices
and Demands on Issuer, Trustee and Holders of Securities. Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the Holders of Securities to or on the Issuer may be given or
served by being deposited postage prepaid, first-class mail (except as otherwise specifically provided herein) addressed (until
another address of the Issuer is filed by the Issuer with the Trustee) to Bankwell Financial Group, Inc., 220 Elm Street, New Canaan,
Connecticut 06840, Attn: Chief Financial Officer. Any notice, direction, request or demand by the Issuer or any Holder of Securities
to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made at ,
, Attn: .
Where this Indenture provides for notice to
Holders of Securities, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder entitled thereto, at his or her last address as it appears in the Security register.
In case, by reason of the suspension of or irregularities in regular mail service, it shall be impracticable to mail notice of
any event to Holders of Securities when said notice is required to be given pursuant to any provision of this Indenture or of the
Securities, then any manner of giving such notice as shall be satisfactory to the Trustee shall be deemed to be a sufficient giving
of such notice.
In case, by reason of the
suspension of or irregularities in regular mail service, it shall be impracticable to mail notice to the Issuer when such notice
is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be satisfactory
to the Trustee shall be deemed to be a sufficient giving of such notice.
Neither the failure to
give notice, nor any defect in any notice so given, to any particular Holder of a Security shall affect the sufficiency of such
notice with respect to other Holders of Securities given as provided above.
Where this Indenture provides
for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee,
but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
Section 11.05 Officer’s
Certificates and Opinions of Counsel; Statements to Be Contained Therein. Upon any application or demand by the Issuer to the
Trustee to take any action under any of the provisions of this Indenture, the Issuer shall furnish to the Trustee an Officer’s
Certificate stating that all conditions precedent 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 have been complied with,
except that in the case of any such application or demand as to which the furnishing of such documents is specifically required
by any provision of this Indenture relating to such particular application or demand, no additional certificate or opinion need
be furnished.
Each certificate or opinion
provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for
in this Indenture shall include (a) a statement that the person making such certificate or opinion has read such covenant or condition,
(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based, (c) a statement that, in the opinion of such person, he or she has made such examination
or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition
has been complied with and (d) a statement as to whether or not, in the opinion of such person, such condition or covenant has
been complied with.
Any certificate, statement
or opinion of an officer of the Issuer may be based, insofar as it relates to legal matters, upon a certificate or opinion of or
representations by counsel, unless such officer knows that the certificate or opinion or representations with respect to the matters
upon which his or her certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable
care should know that the same are erroneous. Any certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, information with respect to which is in the possession of the Issuer, upon the certificate, statement or opinion
of or representations by an officer or officers of the Issuer, unless such counsel knows that the certificate, statement or opinion
or representations with respect to the matters upon which his or her certificate, statement or opinion may be based as aforesaid
are erroneous, or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement
or opinion of an officer of the Issuer or of counsel may be based, insofar as it relates to accounting matters, upon a certificate
or opinion of or representations by an accountant or firm of accountants in the employ of the Issuer, unless such officer or counsel,
as the case may be, knows that the certificate or opinion or representations with respect to the accounting matters upon which
his or her certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should
know that the same are erroneous.
Any certificate or opinion
of any independent firm of public accountants filed with and directed to the Trustee shall contain a statement that such firm is
independent.
Section 11.06 Payments
Due on Saturdays, Sundays and Holidays. If the date of maturity of interest on or principal of the Securities of any series
or the date fixed for redemption or repayment of any such Security, or the last day on which a Holder has the right to convert
any Security, shall not be a Business Day, then payment of interest or principal, or any conversion, need not be made on such date,
but may be made on the next succeeding Business Day with the same force and effect as if made on the date of maturity or the date
fixed for redemption or on such last day for conversion, and no interest shall accrue for the period after such date.
Section 11.07 Conflict
of Any Provision of Indenture With Trust Indenture Act of 1939. If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with another provision included in this Indenture by operation of Sections 310 to 317, inclusive, of the
Trust Indenture Act of 1939, such incorporated provision shall control.
Section 11.08 New
York Law to Govern. This Indenture and each Security shall be deemed to be a contract under the laws of the State of New York,
and for all purposes shall be governed by and construed in accordance with the laws of such State without regard to any principle
of conflict of laws that would require or permit the application of the laws of any other jurisdiction, except as may otherwise
be required by mandatory provisions of law.
Section 11.09 Counterparts.
This Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together
constitute but one and the same instrument.
Section 11.10 Effect
of Headings. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
Section 11.11 Actions
by Successor. Any act or proceeding by any provision of this Indenture authorized or required to be done or performed by any
board of directors or its equivalent, committee or officer of the Issuer shall and may be done and performed with like force and
effect by the corresponding board, committee or officer of any corporation that shall at the time be the lawful successor of the
Issuer.
Section 11.12 Severability.
In case any one or more of the provisions contained in this Indenture or in the Securities of any series shall for any reason be
held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any
other provisions of this Indenture or of such Securities, but this Indenture and such Securities shall be construed as if such
invalid or illegal or unenforceable provision had never been contained herein or therein.
ARTICLE 12
REDEMPTION OF SECURITIES AND SINKING FUNDS
Section 12.01 Applicability
of Article. The provisions of this Article shall be applicable to the Securities of any series which are redeemable before
their maturity or to any sinking fund for the retirement of Securities of a series, except as otherwise specified, as contemplated
by Section 2.03 for Securities of such series.
Section 12.02 Notice
of Redemption; Partial Redemptions. Notice of redemption to the Holders of Securities of any series to be redeemed as a whole
or in part at the option of the Issuer shall be given by mailing notice of such redemption by first class mail, postage prepaid,
at least 30 days and not more than 60 days prior to the date fixed for redemption to such Holders of Securities of such series
at their last addresses as they shall appear upon the Security register. Any notice which is given in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the Holder receives the notice. Failure to give notice or
any defect in the notice to the Holder of any Security of a series designated for redemption as a whole or in part shall not affect
the validity of the proceedings for the redemption of any other Security of such series.
The notice of redemption
to each such Holder shall specify the principal amount of each Security of such series held by such Holder to be redeemed, the
date fixed for redemption, the redemption price, the place or places of payment, that payment will be made upon presentation and
surrender of such Securities, that such redemption is pursuant to the mandatory or optional sinking fund, or both, if such be the
case, that interest accrued to the date fixed for redemption will be paid as specified in such notice and that on and after said
date interest thereon or on the portions thereof to be redeemed will cease to accrue and shall also specify, if applicable, the
conversion price then in effect and the date on which the right to convert such Securities or the portions thereof to be redeemed
will expire. In case any Security of a series is to be redeemed in part only, the notice of redemption shall state the
portion of the principal amount thereof to
be redeemed and shall state that on and after the date fixed for redemption, upon surrender of such Security, a new Security or
Securities of such series in principal amount equal to the unredeemed portion thereof will be issued.
The notice of redemption
of Securities of any series to be redeemed at the option of the Issuer shall be given by the Issuer or, at the Issuer’s request,
by the Trustee in the name and at the expense of the Issuer.
On or before the redemption
date specified in the notice of redemption given as provided in this Section, the Issuer will deposit with the Trustee or with
one or more paying agents (or, if the Issuer is acting as its own paying agent, set aside, segregate and hold in trust as provided
in Section 3.04) an amount of money sufficient to redeem on the redemption date all the Securities of such series so called for
redemption (other than those Securities theretofore surrendered for conversion into Common Stock in accordance with their terms)
at the appropriate redemption price, together with accrued interest to the date fixed for redemption. If any Security called for
redemption is converted pursuant hereto and in accordance with the terms thereof, any money deposited with the Trustee or any paying
agent or so segregated and held in trust for the redemption of such Security shall be paid to the Issuer upon the Issuer’s
request, or, if then held by the Issuer, shall be discharged from such trust. The Issuer will deliver to the Trustee at least 10
days prior to the date the notice required to be delivered to the Holders is to be sent (unless a shorter time period shall be
acceptable to the Trustee) an Officer’s Certificate (which need not comply with Section 11.05) stating the aggregate principal
amount of Securities to be redeemed. In case of a redemption at the election of the Issuer prior to the expiration of any restriction
on such redemption, the Issuer shall deliver to the Trustee, prior to the giving of any notice of redemption to Holders pursuant
to this Section, an Officer’s Certificate stating that such restriction has been complied with.
If less than all the Securities
of a series are to be redeemed, the Trustee shall select, in such manner as it shall deem appropriate and fair, Securities of such
series to be redeemed in whole or in part. Securities may be redeemed in part in multiples equal to the minimum authorized denomination
for Securities of such series or any multiple thereof. The Trustee shall promptly notify the Issuer in writing of the Securities
of such series selected for redemption and, in the case of any Securities of such series 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 of any series shall relate, in the case of any Security redeemed or to be redeemed only in part,
to the portion of the principal amount of such Security which has been or is to be redeemed. If any Security selected for partial
redemption is surrendered for conversion after such selection, the converted portion of such Security shall be deemed (so far as
may be possible) to be the portion selected for redemption.
Section 12.03 Payment
of Securities Called for Redemption. If notice of redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for redemption, and on and after said date (unless the Issuer
shall default in the payment of such Securities at the redemption price, together with interest accrued to said date) interest
on the Securities or portions of Securities so called for redemption shall cease to accrue, and such Securities shall cease from
and after the date fixed for redemption to be convertible into Common Stock (to the extent otherwise convertible in accordance
with their terms), if applicable, and cease to be entitled to any benefit or security under this Indenture, and except as provided
in the paragraph below, the Holders thereof shall have no right in respect of such Securities except the right to receive the redemption
price thereof and unpaid interest to the date fixed for redemption. On presentation and surrender of such Securities at a place
of payment specified in said notice, said Securities or the specified portions thereof shall be paid and redeemed by the Issuer
at the applicable redemption price, together with interest accrued thereon to the date fixed for redemption; provided, that payment
of interest becoming due on or prior to the date fixed for redemption shall be payable to the Holders of such Securities registered
as such on the relevant record date subject to the terms and provisions of Sections 2.03 and 2.07 hereof.
If any Security called
for redemption shall not be so paid upon surrender thereof for redemption, the principal shall, until paid or duly provided for,
bear interest from the date fixed for redemption at the rate of interest or Yield to Maturity (in the case of an Original Issue
Discount Security) borne by such Security and, if applicable,
such Security shall remain convertible into
Common Stock until the principal of such Security shall have been paid or duly provided for.
Upon presentation of any
Security redeemed in part only, the Issuer shall execute and the Trustee shall authenticate and deliver to or on the order of the
Holder thereof, at the expense of the Issuer, a new Security or Securities of such series, of authorized denominations, in principal
amount equal to the unredeemed portion of the Security so presented.
Section 12.04 Exclusion
of Certain Securities from Eligibility for Selection for Redemption. Securities shall be excluded from eligibility for selection
for redemption if they are identified by registration and certificate number in an Officer’s Certificate delivered to the
Trustee at least 40 days prior to the last date on which notice of redemption may be given as being owned of record and beneficially
by, and not pledged or hypothecated by either (a) the Issuer or (b) an entity specifically identified in such written statement
as directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer.
Section 12.05 Mandatory
and Optional Sinking Funds. The minimum amount of any sinking fund payment provided for by the terms of the 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 the Securities of any series is herein referred to as an “optional sinking fund payment”.
The date on which a sinking fund payment is to be made is herein referred to as the “sinking fund payment date”.
In lieu of making all or any part of any mandatory
sinking fund payment with respect to any series of Securities in cash, the Issuer may at its option (a) deliver to the Trustee
Securities of such series theretofore purchased or otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Issuer or receive credit for Securities of such series (not previously so credited) theretofore purchased or otherwise
acquired (except as aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant to Section 2.10 and, if applicable,
receive credit for Securities (not previously so credited) converted into Common Stock and so delivered to the Trustee for cancellation,
(b) receive credit for optional sinking fund payments (not previously so credited) made pursuant to this Section, or (c) receive
credit for Securities of such series (not previously so credited) redeemed by the Issuer through any optional redemption provision
contained in the terms of such series. Securities so delivered or credited shall be received or credited by the Trustee at the
sinking fund redemption price specified in such Securities.
On or before the 60th day
next preceding each sinking fund payment date for any series, the Issuer will deliver to the Trustee an Officer’s Certificate
(which need not contain the statements required by Section 11.05) (a) specifying the portion of the mandatory sinking fund payment
to be satisfied by payment of cash and the portion to be satisfied by credit of Securities of such series and the basis for such
credit, (b) stating that none of the Securities of such series for which credit will be taken has theretofore been so credited,
(c) stating that no defaults in the payment of interest or Events of Default with respect to such series have occurred (which have
not been waived or cured) and are continuing and (d) stating whether or not the Issuer intends to exercise its right to make an
optional sinking fund payment with respect to such series and, if so, specifying the amount of such optional sinking fund payment
which the Issuer intends to pay on or before the next succeeding sinking fund payment date. Any Securities of such series to be
credited and required to be delivered to the Trustee in order for the Issuer to be entitled to credit therefor as aforesaid which
have not theretofore been delivered to the Trustee shall be delivered for cancellation pursuant to Section 2.10 to the Trustee
with such Officer’s Certificate (or reasonably promptly thereafter if acceptable to the Trustee). Such Officer’s Certificate
shall be irrevocable and upon its receipt by the Trustee the Issuer shall become unconditionally obligated to make all the cash
payments or payments therein referred to, if any, on or before the next succeeding sinking fund payment date. Failure of the Issuer,
on or before any such 60th day, to deliver such Officer’s Certificate and Securities specified in this paragraph, if any,
shall not constitute a default but shall constitute, on and as of such date, the irrevocable election of the Issuer that the mandatory
sinking fund payment for such series due on the next succeeding sinking fund payment date shall be paid entirely in cash without
the option to deliver or credit Securities of such series in respect thereof.
If the sinking fund payment
or payments (mandatory or optional or both) to be made in cash on the next succeeding sinking fund payment date plus any unused
balance of any preceding sinking fund payments made in cash shall exceed $50,000 (or the equivalent thereof in any Foreign Currency
or a lesser sum in Dollars or in any Foreign Currency if the Issuer shall so request) with respect to the Securities of any particular
series, such cash shall be applied on the next succeeding sinking fund payment date to the redemption of Securities of such series
at the sinking fund redemption price together with accrued interest to the date fixed for redemption. If such amount shall be $50,000
(or the equivalent thereof in any Foreign Currency) or less and the Issuer makes no such request then it shall be carried over
until a sum in excess of $50,000 (or the equivalent thereof in any Foreign Currency) is available, which delay in accordance with
this paragraph shall not be a default or breach of the obligation to make such payment. The Trustee shall select, in the manner
provided in Section 12.02, for redemption on such sinking fund payment date a sufficient principal amount of Securities of such
series to which such cash may be applied, as nearly as may be, and shall (if requested in writing by the Issuer) inform the Issuer
of the serial numbers of the Securities of such series (or portions thereof) so selected. The Trustee, in the name and at the expense
of the Issuer (or the Issuer, if it shall so request the Trustee in writing), shall cause notice of redemption of the Securities
of such series to be given in substantially the manner provided in Section 12.02 (and with the effect provided in Section 12.03)
for the redemption of Securities of such series in part at the option of the Issuer. The amount of any sinking fund payments not
so applied or allocated to the redemption of Securities of such series shall be added to the next cash sinking fund payment for
such series and, together with such payment, shall be applied in accordance with the provisions of this Section. Any and all sinking
fund moneys held on the stated maturity date of the Securities of any particular series (or earlier, if such maturity is accelerated),
which are not held for the payment or redemption of particular Securities of such series, shall be applied, together with other
moneys, if necessary, sufficient for the purpose, to the payment of the principal of, and interest on, the Securities of such series
at maturity. The Issuer’s obligation to make a mandatory or optional sinking fund payment shall automatically be reduced
by an amount equal to the sinking fund redemption price allocable to any Securities or portions thereof called for redemption pursuant
to the preceding paragraph on any sinking fund payment date and converted into Common Stock in accordance with the terms of such
Securities; provided that, if the Trustee is not the conversion agent for the Securities, the Issuer or such conversion agent shall
give the Trustee written notice on or prior to the date fixed for redemption of the principal amount of Securities or portions
thereof so converted.
On or before each sinking
fund payment date, the Issuer shall pay to the Trustee in cash or shall otherwise provide for the payment of all interest accrued
to the date fixed for redemption on Securities to be redeemed on such sinking fund payment date.
The Trustee shall not redeem
or cause to be redeemed any Securities of a series with sinking fund moneys or give any notice of redemption of Securities for
such series by operation of the sinking fund during the continuance of a default in payment of interest on such Securities or of
any Event of Default except that, where the mailing of notice of redemption of any Securities shall theretofore have been made,
the Trustee shall redeem or cause to be redeemed such Securities, provided that it shall have received from the Issuer a sum sufficient
for such redemption. Except as aforesaid, any moneys in the sinking fund for such series at the time when any such default or Event
of Default shall occur, and any moneys thereafter paid into the sinking fund, shall, during the continuance of such default or
Event of Default, be deemed to have been collected under Article 5 and held for the payment of all such Securities. In case such
Event of Default shall have been waived as provided in Section 5.10, or the default cured on or before the 60th day preceding the
sinking fund payment date in any year, such moneys shall thereafter be applied on such sinking fund payment date in accordance
with this Section to the redemption of such Securities.
[Signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed as of .
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BANKWELL FINANCIAL GROUP, INC. |
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By: |
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Name: |
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Title: |
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Attest: |
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By: |
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Name: |
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Title: |
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, Trustee |
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By: |
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Name: |
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Title: |
Exhibit 4.2
BANKWELL FINANCIAL GROUP, INC.
and
Trustee
INDENTURE
Dated as of _____________
SUBORDINATED DEBT SECURITIES
CROSS-REFERENCE TABLE (1)
Section of |
|
|
Trust Indenture Act |
|
Section of |
of 1939,
as amended |
|
Indenture |
|
|
|
310(a) |
|
6.09 |
310(b) |
|
6.08 |
|
|
6.10 |
311(a) |
|
6.13 |
311(b) |
|
6.13 |
312(a) |
|
4.01 |
|
|
4.04 |
312(b) |
|
4.04(c) |
312(c) |
|
4.04(c) |
313(a) |
|
4.03 |
313(b) |
|
4.03 |
313(c) |
|
4.03 |
313(d) |
|
4.03 |
314(a) |
|
4.02 |
314(b) |
|
Inapplicable |
314(c) |
|
2.04 |
|
|
8.04 |
|
|
9.01(c) |
|
|
10.01(b) |
|
|
11.05 |
314(d) |
|
Inapplicable |
314(e) |
|
11.05 |
314(f) |
|
Inapplicable |
315(a) |
|
6.01 |
|
|
6.02 |
315(b) |
|
5.11 |
315(c) |
|
6.01 |
315(d) |
|
6.01 |
|
|
6.02 |
315(e) |
|
5.12 |
316(a) |
|
5.09 |
|
|
5.10 |
|
|
7.04 |
316(b) |
|
5.06 |
|
|
5.10 |
316(c) |
|
7.02 |
317(a) |
|
5.04 |
317(b) |
|
3.04 |
318(a) |
|
11.07 |
(1) This Cross-Reference Table does
not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms or provisions.
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS |
1 |
|
Section 1.01 Certain Terms Defined |
1 |
ARTICLE 2 SECURITIES |
5 |
|
Section 2.01 Forms Generally |
5 |
|
Section 2.02 Form of Trustee’s Certificate of Authentication |
6 |
|
Section 2.03 Issuable in Series |
6 |
|
Section 2.04 Authentication and Delivery of Securities |
8 |
|
Section 2.05 Execution of Securities |
9 |
|
Section 2.06 Certificate of Authentication |
9 |
|
Section 2.07 Denomination and Date of Securities; Payments of Interest |
9 |
|
Section 2.08 Registration, Transfer and Exchange |
10 |
|
Section 2.09 Mutilated, Defaced, Destroyed, Lost and Stolen Securities |
12 |
|
Section 2.10 Cancellation of Securities; Destruction Thereof |
12 |
|
Section 2.11 Temporary Securities |
12 |
ARTICLE 3 COVENANTS OF THE ISSUER |
13 |
|
Section 3.01 Payment of Principal and Interest |
13 |
|
Section 3.02 Offices for Payments, Etc |
13 |
|
Section 3.03 Appointment to Fill a Vacancy in Office of Trustee |
14 |
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Section 3.04 Paying Agents |
14 |
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Section 3.05 Existence |
14 |
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Section 3.06 Maintenance of Properties |
14 |
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Section 3.07 Insurance |
15 |
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Section 3.08 Payment of Taxes and Other Claims |
15 |
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Section 3.09 Written Statement to Trustee |
15 |
ARTICLE 4 SECURITY HOLDERS LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE |
15 |
|
Section 4.01 Issuer to Furnish Trustee Information as to Names and Addresses of Security Holders |
15 |
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Section 4.02 Reports by the Issuer |
15 |
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Section 4.03 Reports by the Trustee |
15 |
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Section 4.04 Preservation of Information; Communication with Security Holders |
16 |
ARTICLE 5 REMEDIES OF THE TRUSTEE AND SECURITY HOLDERS ON EVENT OF DEFAULT |
16 |
|
Section 5.01 Event of Default Defined; Acceleration of Maturity; Waiver of Default |
16 |
|
Section 5.02 Collection of Debt by Trustee; Trustee May Prove Debt |
18 |
|
Section 5.03 Application of Proceeds |
19 |
|
Section 5.04 Suits for Enforcement |
20 |
|
Section 5.05 Restoration of Rights on Abandonment of Proceedings |
20 |
|
Section 5.06 Limitations on Suits by Security Holders |
20 |
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Section 5.07 Unconditional Right of Security Holders to Institute Certain Suits |
21 |
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Section 5.08 Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default |
21 |
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Section 5.09 Control by Holders of Securities |
21 |
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Section 5.10 Waiver of Past Defaults |
22 |
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Section 5.11 Trustee to Give Notice of Default |
22 |
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Section 5.12 Right of Court to Require Filing of Undertaking to Pay Costs |
22 |
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Section 5.13 Waiver of Usury, Stay or Extension Laws |
22 |
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Section 5.14 Undertaking for Costs |
23 |
ARTICLE 6 CONCERNING THE TRUSTEE |
23 |
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Section 6.01 Duties and Responsibilities of the Trustee; During Default; Prior to Default |
23 |
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Section 6.02 Certain Rights of the Trustee |
23 |
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Section 6.03 Trustee Not Responsible for Recitals, Disposition of Securities or Application of Proceeds Thereof |
24 |
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Section 6.04 Trustee and Agents May Hold Securities; Collections, Etc |
24 |
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Section 6.05 Moneys Held by Trustee |
25 |
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Section 6.06 Compensation and Indemnification of Trustee and Its Prior Claim |
25 |
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Section 6.07 Right of Trustee to Rely on Officer’s Certificate, Etc |
25 |
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Section 6.08 Disqualification; Conflicting Interests |
25 |
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Section 6.09 Persons Eligible for Appointment as Trustee |
25 |
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Section 6.10 Resignation and Removal; Appointment of Successor Trustee |
26 |
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Section 6.11 Acceptance of Appointment by Successor Trustee |
26 |
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Section 6.12 Merger, Conversion, Consolidation or Succession to Business of Trustee |
27 |
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Section 6.13 Preferential Collection of Claims Against the Issuer |
28 |
ARTICLE 7 CONCERNING THE SECURITY HOLDERS |
28 |
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Section 7.01 Evidence of Action Taken by Security Holders |
28 |
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Section 7.02 Proof of Execution of Instruments and of Holding of Securities |
28 |
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Section 7.03 Holders to Be Treated as Owners |
28 |
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Section 7.04 Securities Owned by Issuer Deemed Not Outstanding |
28 |
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Section 7.05 Right of Revocation of Action Taken |
29 |
ARTICLE 8 SUPPLEMENTAL INDENTURES |
29 |
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Section 8.01 Supplemental Indentures Without Consent of Security Holders |
29 |
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Section 8.02 Supplemental Indentures With Consent of Security Holders |
30 |
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Section 8.03 Effect of Supplemental Indenture |
31 |
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Section 8.04 Documents to Be Given to Trustee |
31 |
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Section 8.05 Notation on Securities in Respect of Supplemental Indentures |
31 |
ARTICLE 9 CONSOLIDATION, MERGER, SALE OR CONVEYANCE |
32 |
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Section 9.01 Issuer May Consolidate, Etc., on Certain Terms |
32 |
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Section 9.02 Successor Issuer Substituted |
32 |
ARTICLE 10 SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE; UNCLAIMED MONEYS |
33 |
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Section 10.01 Satisfaction and Discharge of Indenture; Defeasance |
33 |
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Section 10.02 Application by Trustee of Funds Deposited for Payment of Securities |
35 |
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Section 10.03 Repayment of Moneys Held by Paying Agent |
35 |
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Section 10.04 Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years |
36 |
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Section 10.05 Indemnity for U.S. Government Obligations |
36 |
ARTICLE 11 MISCELLANEOUS PROVISIONS |
36 |
|
Section 11.01 No Recourse |
36 |
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Section 11.02 Provisions of Indenture for the Sole Benefit of Parties and Holders of Securities |
36 |
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Section 11.03 Successors and Assigns of Issuer Bound by Indenture |
36 |
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Section 11.04 Notices and Demands on Issuer, Trustee and Holders of Securities |
36 |
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Section 11.05 Officer’s Certificates and Opinions of Counsel; Statements to Be Contained Therein |
37 |
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Section 11.06 Payments Due on Saturdays, Sundays and Holidays |
38 |
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Section 11.07 Conflict of Any Provision of Indenture With Trust Indenture Act of 1939 |
38 |
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Section 11.08 New York Law to Govern |
38 |
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Section 11.09 Counterparts |
38 |
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Section 11.10 Effect of Headings |
38 |
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Section 11.11 Actions by Successor |
38 |
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Section 11.12 Severability |
38 |
ARTICLE 12 REDEMPTION OF SECURITIES AND SINKING FUNDS |
38 |
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Section 12.01 Applicability of Article |
39 |
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Section 12.02 Notice of Redemption; Partial Redemptions |
39 |
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Section 12.03 Payment of Securities Called for Redemption |
40 |
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Section 12.04 Exclusion of Certain Securities from Eligibility for Selection for Redemption |
40 |
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Section 12.05 Mandatory and Optional Sinking Funds |
40 |
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ARTICLE 13 SUBORDINATION OF SECURITIES |
42 |
|
Section 13.01 Agreement of Subordination |
42 |
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Section 13.02 Payments to Security Holders |
42 |
|
Section 13.03 Subrogation of Securities |
43 |
|
Section 13.04 Authorization by Security Holders |
44 |
|
Section 13.05 Notice to Trustee |
44 |
|
Section 13.06 Trustee’s Relation to Senior Indebtedness |
45 |
|
Section 13.07 No Impairment of Subordination |
45 |
|
Section 13.08 Rights of Trustee |
45 |
THIS INDENTURE, dated as
of between Bankwell
Financial Group, Inc., a Connecticut corporation (the “Issuer”), and ,
a (the “Trustee”),
W I T N E S S E T H :
WHEREAS, the Issuer may
from time to time duly authorize the issue of its unsecured subordinated debentures, notes or other evidences of indebtedness to
be issued in one or more series (the “Securities”) up to such principal amount or amounts as may from time to
time be authorized in accordance with the terms of this Indenture;
WHEREAS, the Issuer has
duly authorized the execution and delivery of this Indenture to provide, among other things, for the authentication, delivery and
administration of the Securities; and
WHEREAS, all things necessary
to make this Indenture a valid indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the
premises and the purchases of the Securities by the Holders thereof, the Issuer and the Trustee mutually covenant and agree for
the equal and proportionate benefit of the respective Holders from time to time of the Securities as follows:
ARTICLE 1
DEFINITIONS
Section 1.01 Certain
Terms Defined. The following terms (except as otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this
Section. All other terms used in this Indenture that are defined in the Trust Indenture Act of 1939 or the definitions of which
in the Securities Act of 1933 are referred to in the Trust Indenture Act of 1939, including terms defined therein by reference
to the Securities Act of 1933 (except as herein otherwise expressly provided or unless the context otherwise clearly requires),
shall have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of
this Indenture. All accounting terms used herein and not expressly defined shall have the meanings assigned to such terms in accordance
with generally accepted accounting principles, and the term “generally accepted accounting principles” means
such accounting principles as are generally accepted in the United States at the time of any computation. The words “herein”,
“hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision. The terms defined in this Article have the meanings assigned to them in this
Article and include the plural as well as the singular.
“Affiliate”
means, with respect to any specified Person, any other Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person. For the purposes of this definition, “control,” when used with
respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled”
have meanings correlative to the foregoing.
“Board of Directors”
means either the Board of Directors of the Issuer or any committee of such Board of Directors duly authorized to act on its behalf.
“Board Resolution”
means a copy of one or more resolutions, certified by the secretary or an assistant secretary of the Issuer to have been duly adopted
by the Board of Directors and to be in full force and effect, and delivered to the Trustee.
“Business Day”
means, with respect to any Security, a day that in the city (or in any of the cities, if more than one) in which amounts are payable,
as specified in the form of such Security, is not a day on which banking institutions are authorized or required by law or regulation
to close.
“Commission”
means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934,
or if at any time after the execution and delivery of this Indenture such Commission is not existing and performing the duties
now assigned to it under the Trust Indenture Act of 1939, then the body performing such duties on such date.
“Common Stock”
means shares of common stock, no par value per share, of the Issuer as the same exists at the date of execution and delivery of
this Indenture or as such stock may be reconstituted from time to time.
“Corporate Trust
Office” means the office of the Trustee at which the corporate trust business of the Trustee shall, at any particular
time, be principally administered, which office is, at the date as of which this Indenture is dated, located at .
“Debt”
of any Person means any debt for money borrowed which is created, assumed, incurred or guaranteed in any manner by such Person
or for which such Person is otherwise responsible or liable, and shall expressly include any such guaranty thereof by such Person.
For the purpose of computing the amount of the Debt of any Person there shall be excluded all Debt of such Person for the payment
or redemption or satisfaction of which money or securities (or evidences of such Debt, if permitted under the terms of the instrument
creating such Debt) in the necessary amount shall have been deposited in trust with the proper depositary, whether upon or prior
to the maturity or the date fixed for redemption of such Debt; and, in any instance where Debt is so excluded, for the purpose
of computing the assets of such Person there shall be excluded the money, securities or evidences of Debt deposited by such Person
in trust for the purpose of paying or satisfying such Debt.
“Depositary”
means, with respect to the Securities of any series issuable or issued in the form of one or more Global Securities, the Person
designated as Depositary by the Issuer pursuant to Section 2.04 until a successor Depositary shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter “Depositary” shall mean or include each Person who is then
a Depositary hereunder, and if at any time there is more than one such Person, “Depositary” as used with respect to
the Securities of any such series shall mean the Depositary with respect to the Global Securities of that series.
“Dollar”
means the currency of the United States of America as at the time of payment is legal tender for the payment of public and private
debts.
“Event of Default”
means any event or condition specified as such in Section 5.01.
“Foreign Currency”
means a currency issued by the government of a country other than the United States.
“Global Security”,
means a Security evidencing all or a part of a series of Securities, issued to the Depositary for such series in accordance with
Section 2.04, and bearing the legend prescribed in Section 2.04.
“Holder”,
“Holder of Securities”, “Security Holder” or other similar terms mean the Person in whose name such
Security is registered in the Security register kept by the Issuer for that purpose in accordance with the terms hereof.
“Indenture”
means this instrument as originally executed and delivered or, if amended or supplemented as herein provided, as so amended or
supplemented or both, and shall include the forms and terms of particular series of Securities established as contemplated hereunder.
“interest”,
unless the context otherwise requires, refers to interest, and when used with respect to non-interest bearing Securities, refers
to interest payable after maturity, if any.
“Issuer”
means Bankwell Financial Group, Inc., a Connecticut corporation, and, subject to Article 9, its successors and assigns.
“Issuer Order”
means a written statement, request or order of the Issuer signed in its name by the chairman of the Board of Directors, the president
or any vice president of the Issuer.
“Notice of Default”
shall have the meaning set forth in Section 5.01(c).
“Officer’s
Certificate” means a certificate signed by the chairman of the Board of Directors, the president, any vice president,
the treasurer, the secretary or any assistant secretary of the Issuer and delivered to the Trustee. Each such certificate shall
comply with Section 314 of the Trust Indenture Act of 1939 and, except to the extent provided herein, shall include the statements
provided for in Section 11.05.
“Opinion of Counsel”
means an opinion in writing signed by the general corporate counsel or such other legal counsel who may be an employee of or counsel
to the Issuer and who shall be satisfactory to the Trustee. Each such opinion shall comply with Section 314 of the Trust Indenture
Act of 1939 and shall include the statements provided for in Section 11.05, if and to the extent required hereby.
“original issue
date” of any Security (or portion thereof) means the earlier of (a) the date of such Security or (b) the date of any
Security (or portion thereof) for which such Security was issued (directly or indirectly) on registration of transfer, exchange
or substitution.
“Original Issue
Discount Security” means any Security that provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to Section 5.01.
“Outstanding”,
when used with reference to Securities, shall, subject to the provisions of Section 7.04, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture, except
(a) Securities
theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(b) Securities,
or portions thereof, for the payment or redemption of which cash or U.S. Government Obligations (as provided for in Section 10.01
(a) and Section 10.01(b)) in the necessary amount shall have been deposited in trust with the Trustee or with any paying agent
(other than the Issuer) or shall have been set aside, segregated and held in trust by the Issuer for the Holders of such Securities
(if the Issuer shall act as its own paying agent); provided, that if such Securities, or portions thereof, are to be redeemed prior
to the maturity thereof, notice of such redemption shall have been given as herein provided, or provision satisfactory to the Trustee
shall have been made for giving such notice; and
(c) Securities
in substitution for which other Securities shall have been authenticated and delivered, or which shall have been paid, pursuant
to the terms of Section 2.09 (except with respect to any such Security as to which proof satisfactory to the Trustee is presented
that such Security is held by a Person in whose hands such Security is a legal, valid and binding obligation of the Issuer), Securities
converted into Common Stock pursuant hereto and Securities not deemed outstanding pursuant to Section 12.02.
In determining whether
the Holders of the requisite principal amount of Outstanding Securities of any or all series have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, (i) the principal amount of an Original Issue Discount Security that shall be deemed
to be Outstanding for such purposes shall be the
amount of the principal thereof that would
be due and payable as of the date of such determination upon a declaration of acceleration of the maturity thereof pursuant to
Section 5.01 and (ii) Securities owned by the Issuer or any other obligor upon the Securities or any Affiliate of the Issuer or
of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall
be protected in making any such determination or relying upon any such request, demand, authorization, direction, notice, consent
or waiver, only Securities that a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities
so owned that shall have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee (A) the pledgee’s right so to act with respect to such Securities and (B) that the pledgee is not the Issuer
or any other obligor upon the Securities or an Affiliate (other than a Trust) of the Issuer or such other obligor.
“Person”
means any individual, corporation, partnership, limited partnership, limited liability company, joint venture, association, joint
stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
“principal”
whenever used with reference to the Securities or any Security or any portion thereof, shall be deemed to include “and premium,
if any”.
“record date”
shall have the meaning set forth in Section 2.07.
“Responsible Officer”,
when used with respect to the Trustee, means the chairman of the board of directors, any vice chairman of the board of directors,
the chairman of the trust committee, the chairman of the executive committee, any vice chairman of the executive committee, the
president, any vice president, the cashier, the secretary, the treasurer, any trust officer, any assistant trust officer, any assistant
vice president, any assistant cashier, any assistant secretary, any assistant treasurer, or any other officer or assistant officer
of the Trustee customarily performing 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 his or her knowledge of and familiarity with the particular
subject.
“Security”
or “Securities” has the meaning stated in the first recital of this Indenture, or, as the case may be, Securities
that have been authenticated and delivered under this Indenture.
“Security Registrar”
shall have the meaning set forth in Section 4.01(b).
“Senior Indebtedness”
of a Person means the principal of, premium, if any, interest on, and any other payment due pursuant to any of the following, whether
outstanding at the date hereof or hereafter incurred or created:
(a) all
of the indebtedness of that Person for money borrowed;
(b) all
of the indebtedness of that Person evidenced by notes, debentures, bonds or other securities sold by that Person for money;
(c) all
of the lease obligations which are capitalized on the books of that Person in accordance with generally accepted accounting principles;
(d) all
indebtedness of others of the kinds described in either of the preceding clauses (a) or (b) above and all lease obligations of
others of the kind described in the preceding clause (c) above that the Person, in any manner, assumes or guarantees or that the
Person in effect guarantees through an agreement to purchase, whether that agreement is contingent or otherwise; and
(e) all
renewals, extensions or refundings of indebtedness of the kinds described in any of the preceding clauses (a), (b) and (d) and
all renewals or extensions of leases of the kinds described in either of the preceding clauses (c) or (d) above;
unless, in the case of any particular
indebtedness, lease, renewal, extension or refunding, the instrument or lease creating or evidencing it or the assumption or guarantee
relating to it expressly provides that such indebtedness, lease, renewal, extension or refunding is not superior in right of payment
to the Securities.
“Significant Subsidiary”
means any Subsidiary which is a “significant subsidiary” (as defined in Article I, Rule 1-02 of Regulation S-X, promulgated
under the Securities Act of 1933, as amended) of the Issuer.
“Subsidiary”
means a corporation, partnership, business or statutory trust or limited liability company, a majority of the outstanding voting
equity securities or a majority of the voting membership or partnership interests, as the case may be, of which is owned or controlled,
directly or indirectly, by the Issuer or by one or more other Subsidiaries of the Issuer. 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.
“Trust Indenture
Act” or “Trust Indenture Act of 1939” (except as otherwise provided in Sections 8.01 and 8.02) means
the Trust Indenture Act of 1939 as in force at the date as of which this Indenture was originally executed.
“Trustee”
means the Person identified as “Trustee” in the first paragraph hereof and, subject to the provisions of Article
6, shall also include any successor trustee. “Trustee” shall also mean or include each Person who is then a
trustee hereunder and if at any time there is more than one such Person, “Trustee” as used with respect to the
Securities of any series shall mean the trustee with respect to the Securities of such series.
“U.S. Government
Obligation” means (a) a direct obligation of the United States of America, backed by its full faith and credit, or (b)
an obligation of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America,
the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America.
“Vice president”,
when used with respect to the Issuer 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 of “vice president”.
“Yield to Maturity”
means the yield to maturity on a series of securities, calculated at the time of issuance of such series, or, if applicable, at
the most recent redetermination of interest on such series, and calculated in accordance with accepted financial practice.
ARTICLE 2
SECURITIES
Section 2.01 Forms Generally.
The Securities of each series shall be substantially in such form (not inconsistent with this Indenture) as shall be established
by or pursuant to one or more Board Resolutions (as set forth in a Board Resolution or, to the extent established pursuant to (rather
than set forth in) a Board Resolution, an Officer’s Certificate detailing such establishment) or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required
or permitted by this Indenture and may have imprinted or otherwise reproduced thereon such legend or legends or endorsements, not
inconsistent with the provisions of this Indenture, as may be required to comply with any law or with any rules or regulations
pursuant thereto, or with any rules of any securities exchange or to conform to general usage, all as may be determined by the
officers executing such Securities as evidenced by their execution of such Securities.
The definitive Securities
shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities as evidenced by their execution of such Securities.
Section 2.02 Form of
Trustee’s Certificate of Authentication. The Trustee’s certificate of authentication on all Securities shall be
in substantially the following form:
This is one of the Securities of the series
designated herein and referred to in the within-mentioned Indenture.
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as Trustee |
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By: |
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Authorized Officer |
Section 2.03 Issuable
in Series. The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is [$_____________].
The Securities may be issued
in one or more series. The terms of a series of Securities shall be established prior to the initial issuance thereof in or pursuant
to one or more Board Resolutions, or, to the extent established pursuant to (rather than set forth in) a Board Resolution, in an
Officer’s Certificate detailing such establishment and/or established in one or more indentures supplemental hereto. The
terms of such series reflected in such Board Resolution, Officer’s Certificate, or supplemental indenture may include the
following or any additional or different terms:
(a) the
designation of the Securities of the series (which may be part of a series of Securities previously issued);
(b) the
terms and conditions, if applicable, upon which conversion or exchange of the Securities into Common Stock will be effected, including
the initial conversion or exchange price or rate and any adjustments thereto, the conversion or exchange period and other provisions
in addition to or in lieu of those described herein;
(c) any
limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities
of the series pursuant to Section 2.08, 2.09, 2.11, 8.05 or 12.03);
(d) if
other than Dollars, the Foreign Currency in which the Securities of that series are denominated;
(e) any
date on which the principal of the Securities of the series is payable and the right, if any, to extend such date or dates;
(f) the
rate or rates at which the Securities of the series shall bear interest, if any, the record date or dates for the determination
of Holders to whom interest is payable, the date or dates from which such interest shall accrue and on which such interest shall
be payable and/or the method by which such rate or rates or date or dates shall be determined, and the right, if any, to extend
the interest payment periods and the duration of that extension;
(g) the
place or places where the principal of and any interest on Securities of the series shall be payable (if other than as provided
in Section 3.02);
(h) the
price or prices at which, the period or periods within which and the terms and conditions upon which Securities of the series may
be redeemed, in whole or in part, at the option of the Issuer, pursuant to any sinking fund or otherwise;
(i) the
obligation, if any, of the Issuer to redeem, purchase or repay Securities of the series pursuant to any mandatory redemption, sinking
fund or analogous provisions or at the option of a Holder thereof and the price or prices at which and the period or periods within
which and any terms and conditions upon which Securities of the series shall be redeemed, purchased or repaid, in whole or in part,
pursuant to such obligation;
(j) if
other than denominations of $1,000 and any integral multiple thereof, the denominations in which Securities of the series shall
be issuable;
(k) if
other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof;
(l) if
other than the currency in which the Securities of that series are denominated, the currency in which payment of the principal
of or interest on the Securities of such series shall be payable;
(m) if
the principal of or interest on the Securities of the series is to be payable, at the election of the Issuer or a Holder thereof,
in a currency other than that in which the Securities are denominated, the period or periods within which, and the terms and conditions
upon which, such election may be made;
(n) if
the amount of payments of principal of and interest on the Securities of the series may be determined with reference to an index
based on a currency other than that in which the Securities of the series are denominated, or by reference to one or more currency
exchange rates, securities or baskets of securities, commodity prices or indices, the manner in which such amounts shall be determined;
(o) if
Sections 10.01(b) or 10.01(c) are inapplicable to Securities of such series;
(p) whether
and under what circumstances the Issuer will pay additional amounts on the Securities of any series in respect of any tax, assessment
or governmental charge withheld or deducted and, if so, whether the Issuer will have the option to redeem such Securities rather
than pay such additional amounts;
(q) if
the Securities of such series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, then
the form and terms of such certificates, documents or conditions;
(r) any
trustees, authenticating or paying agents, transfer agents or registrars or any other agents with respect to the Securities of
such series;
(s) any
other events of default or covenants with respect to the Securities of such series in addition to or in lieu of those contained
in this Indenture;
(t) if
the Securities of the series may be issued in exchange for surrendered Securities of another series, or for other securities of
the Issuer, pursuant to the terms of such Securities or securities or of any agreement entered into by the Issuer, the ratio of
the principal amount of the Securities of the series to be issued
to the principal amount of the Securities
or securities to be surrendered in exchange, and any other material terms of the exchange;
(u) the
extent to which payments on the Securities will be subordinated to the payment of Senior Indebtedness of the Issuer; and
(v) any
other terms of the series.
The Issuer may from time
to time, without notice to or the consent of the Holders of any series of Securities, create and issue further Securities of any
such series ranking equally with the Securities of such series in all respects (or in all respects other than (1) the payment of
interest accruing prior to the issue date of such further Securities or (2) the first payment of interest following the issue date
of such further Securities). Such further Securities may be consolidated and form a single series with the Securities of such series
and have the same terms as to status, redemption or otherwise as the Securities of such series.
Section 2.04 Authentication
and Delivery of Securities. The Issuer may deliver Securities of any series executed by the Issuer to the Trustee for authentication
together with the applicable documents referred to below in this Section, and the Trustee shall thereupon authenticate and deliver
such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant
to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The
maturity date, original issue date, interest rate and any other terms of the Securities of such series shall be determined by or
pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer Order may authorize authentication
and delivery pursuant to oral instructions from the Issuer or its duly authorized agent, which instructions shall be promptly confirmed
in writing. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon:
(a) an
Issuer Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to
the Issuer;
(b) any
Board Resolution, Officer’s Certificate and/or executed supplemental indenture referred to in Sections 2.01 and 2.03 by or
pursuant to which the forms and terms of the Securities were established;
(c) an
Officer’s Certificate setting forth the form or forms and terms of the Securities stating that the form or forms and terms
of the Securities have been established pursuant to Sections 2.01 and 2.03 and comply with this Indenture, and covering such other
matters as the Trustee may reasonably request; and
(d) an
Opinion of Counsel to the effect that:
(i) the
form or forms and terms of such Securities have been established pursuant to Sections 2.01 and 2.03 and comply with this Indenture,
(ii) the
authentication and delivery of such Securities by the Trustee are authorized under the provisions of this Indenture,
(iii) such
Securities when authenticated and delivered by the Trustee and issued by the Issuer in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and binding obligations of the Issuer, and
(iv) all laws and requirements in respect
of the execution and delivery by the Issuer of the Securities have been complied with,
and covering such other matters as the Trustee
may reasonably request.
The Trustee shall have
the right to decline to authenticate and deliver any Securities under this Section if the Trustee, being advised by counsel, determines
that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of
trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such
action would expose the Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties
or immunities under the Securities, this Indenture or otherwise.
The Issuer shall execute
and the Trustee shall, in accordance with this Section with respect to the Securities of a series, authenticate and deliver one
or more Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount
of all of the Securities of such series issued and not yet cancelled, (ii) shall be registered in the name of the Depositary for
such Global Security or Securities or the nominee of such Depositary, (iii) shall be delivered by the Trustee to such Depositary
or pursuant to such Depositary’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless
and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred
except as a whole by the Depositary to the nominee of the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.”
Each Depositary designated
pursuant to this Section must, at the time of its designation and at all times while it serves as Depositary, be a clearing agency
registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.
Section 2.05 Execution
of Securities. The Securities shall be signed on behalf of the Issuer by the chairman of its Board of Directors, any vice chairman
of its Board of Directors, its chief executive officer, its principal financial officer, its president, any vice president or its
treasurer. Such signatures may be the manual or facsimile signatures of the present or any future such officers. Typographical
and other minor errors or defects in any such reproduction of any such signature shall not affect the validity or enforceability
of any Security that has been duly authenticated and delivered by the Trustee.
In case any officer of
the Issuer who shall have signed any of the Securities shall cease to be such officer before the Security so signed shall be authenticated
and delivered by the Trustee or disposed of by the Issuer, such Security nevertheless may be authenticated and delivered or disposed
of as though the person who signed such Security had not ceased to be such officer of the Issuer; and any Security may be signed
on behalf of the Issuer by such persons as, at the actual date of the execution of such Security, shall be the proper officers
of the Issuer, although at the date of the execution and delivery of this Indenture any such person was not such an officer.
Section 2.06 Certificate
of Authentication. Only such Securities as shall bear thereon a certificate of authentication substantially in the form hereinbefore
recited, executed by the Trustee by the manual signature of one of its authorized officers, shall be entitled to the benefits of
this Indenture or be valid or obligatory for any purpose. The execution of such certificate by the Trustee upon any Security executed
by the Issuer shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder
and that the Holder is entitled to the benefits of this Indenture.
Section 2.07 Denomination
and Date of Securities; Payments of Interest. The Securities of each series shall be issuable in denominations established
as contemplated by Section 2.03 or, if not so established, in denominations of $1,000 and any integral multiple thereof. The Securities
of each series shall be numbered, lettered or otherwise distinguished in such manner or in accordance with such plan as the officers
of the Issuer executing the same may determine with the approval of the Trustee, as evidenced by the execution and authentication
thereof. Unless
otherwise indicated in a Board Resolution,
Officer’s Certificate or supplemental indenture for a particular series, interest will be calculated on the basis of a 360-day
year of twelve 30-day months.
Each Security shall be
dated the date of its authentication. The Securities of each series shall bear interest, if any, from the date, and such interest
shall be payable on the dates, established as contemplated by Section 2.03.
The Person in whose name
any Security of any series is registered at the close of business on any record date applicable to a particular series with respect
to any interest payment date for such series shall be entitled to receive the interest, if any, payable on such interest payment
date notwithstanding any transfer, exchange or conversion of such Security subsequent to the record date and prior to such interest
payment date, except if and to the extent the Issuer shall default in the payment of the interest due on such interest payment
date for such series, in which case such defaulted interest shall be paid to the Persons in whose names Outstanding Securities
for such series are registered at the close of business on a subsequent record date (which shall be not less than five Business
Days prior to the date of payment of such defaulted interest) established by notice given by mail by or on behalf of the Issuer
to the Holders of Securities not less than 15 days preceding such subsequent record date. The term “record date” as
used with respect to any interest payment date (except a date for payment of defaulted interest) for the Securities of any series
shall mean the date specified as such in the terms of the Securities of such series established as contemplated by Section 2.03,
or, if no such date is so established, if such interest payment date is the first day of a calendar month, the 15th day of the
immediately preceding calendar month or, if such interest payment date is the 15th day of a calendar month, the first day of such
calendar month, whether or not such record date is a Business Day.
Section 2.08 Registration,
Transfer and Exchange. The Issuer will keep at each office or agency to be maintained for the purpose as provided in Section
3.02 for each series of Securities a register or registers in which, subject to such reasonable regulations as it may prescribe,
it will provide for the registration of Securities of such series and the registration of transfer of Securities of such series.
Such register shall be in written form in the English language or in any other form capable of being converted into such form within
a reasonable time. At all reasonable times such register or registers shall be open for inspection by the Trustee.
Upon due presentation for
registration of transfer of any Security of any series at any such office or agency to be maintained for the purpose as provided
in Section 3.02, the Issuer shall execute and the Trustee shall authenticate and deliver in the name of the transferee or transferees
a new Security or Securities of the same series, maturity date, interest rate and original issue date in authorized denominations
for a like aggregate principal amount.
At the option of the Holder
thereof, Securities of any series (except a Global Security) may be exchanged for a Security or Securities of such series having
authorized denominations and an equal aggregate principal amount, upon surrender of such Securities to be exchanged at the agency
of the Issuer that shall be maintained for such purpose in accordance with Section 3.02 and upon payment, if the Issuer shall so
require, of the charges hereinafter provided. Whenever any Securities are so surrendered for exchange, the Issuer shall execute,
and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive. All
Securities surrendered upon any exchange or transfer provided for in this Indenture shall be promptly cancelled and disposed of
by the Trustee and the Trustee will deliver a certificate of disposition thereof to the Issuer.
All Securities presented
for registration of transfer, exchange, redemption or payment shall (if so required by the Issuer or the Trustee) be duly endorsed
by, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Issuer and the Trustee duly
executed by, the Holder or his or her attorney duly authorized in writing.
The Issuer may require
payment of a sum sufficient to cover any stamp or other tax or other governmental charge that may be imposed in connection with
any exchange or registration of transfer of Securities. No service charge shall be made for any such transaction.
The Issuer shall not be
required to exchange or register a transfer of (a) any Securities of any series for a period of 15 days immediately preceding the
first mailing of notice of redemption of Securities of such series to be redeemed or (b) any Securities selected, called or being
called for redemption, in whole or in part, except, in the case of any Security to be redeemed in part, the portion thereof not
so to be redeemed.
Notwithstanding any other
provision of this Section 2.08, unless and until it is exchanged in whole or in part for Securities in definitive registered form,
a Global Security representing all or a portion of the Securities of a series may not be transferred except as a whole by the Depositary
for such series to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor Depositary for such series or a nominee of such successor Depositary.
If at any time the Depositary
for the Securities of a series notifies the Issuer that it is unwilling or unable to continue as Depositary for the Securities
of such series or if at any time the Depositary for the Securities of a series shall no longer be eligible under Section 2.04,
the Issuer shall appoint a successor Depositary with respect to the Securities of such series. If a successor Depositary for the
Securities of such series is not appointed by the Issuer within 90 days after the Issuer receives such notice or becomes aware
of such ineligibility, the Issuer’s determination pursuant to Section 2.03 that the Securities of such series be represented
by a Global Security shall no longer be effective and the Issuer will execute, and the Trustee, upon receipt of an Officer’s
Certificate for the authentication and delivery of definitive Securities of such series, will authenticate and deliver, Securities
of such series in definitive registered form, in any authorized denominations, in an aggregate principal amount equal to the principal
amount of the Global Security or Securities representing the Securities of such series, in exchange for such Global Security or
Securities.
The Issuer may at any time
and in its sole discretion determine that the Securities of any series issued in the form of one or more Global Securities shall
no longer be represented by a Global Security or Securities. In such event the Issuer will execute, and the Trustee, upon receipt
of an Officer’s Certificate for the authentication and delivery of definitive Securities of such series, will authenticate
and deliver, Securities of such series in definitive registered form, in any authorized denominations, in an aggregate principal
amount equal to the principal amount of the Global Security or Securities representing such series, in exchange for such Global
Security or Securities.
The Depositary for such
Global Security may surrender such Global Security in exchange in whole or in part for Securities of the same series in definitive
registered form in accordance with the two preceding paragraphs or on such other terms as are acceptable to the Issuer and such
Depositary. Thereupon, the Issuer shall execute, and the Trustee shall authenticate and deliver, without service charge,
(i) to
the Person specified by such Depositary a new Security or Securities of the same series, of any authorized denominations as requested
by such Person, in an aggregate principal amount equal to and in exchange for such Person’s beneficial interest in the Global
Security; and
(ii) to
such Depositary a new Global Security in a denomination equal to the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Securities authenticated and delivered pursuant to clause (i) above.
Upon the exchange of a
Global Security for Securities in definitive registered form, in authorized denominations, such Global Security shall be cancelled
by the Trustee. Securities in definitive registered form issued in exchange for a Global Security pursuant to this Section 2.08
shall be registered in such names and in such authorized denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such
Securities to or as directed by the Persons in whose names such Securities are so registered.
All Securities issued upon
any transfer or exchange of Securities shall be valid obligations of the Issuer, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Securities surrendered upon such transfer or exchange.
Section 2.09 Mutilated,
Defaced, Destroyed, Lost and Stolen Securities. In case any temporary or definitive Security shall become mutilated, defaced
or be destroyed, lost or stolen, the Issuer in its discretion may execute, and upon the written request of any officer of the Issuer,
the Trustee shall authenticate and deliver a new Security of the same series, maturity date, interest rate and original issue date,
bearing a number or other distinguishing symbol not contemporaneously outstanding, in exchange and substitution for the mutilated
or defaced Security, or in lieu of and substitution for the Security so destroyed, lost or stolen. In every case the applicant
for a substitute Security shall furnish to the Issuer and to the Trustee and any agent of the Issuer or the Trustee such security
or indemnity as may be required by them to indemnify and defend and to save each of them harmless and, in every case of destruction,
loss or theft, evidence to their satisfaction of the destruction, loss or theft of such Security and of the ownership thereof and
in the case of mutilation or defacement shall surrender the Security to the Trustee.
Upon the issuance of any
substitute Security, the Issuer 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.
In case any Security which has matured or is about to mature or has been called for redemption in full, or is being surrendered
for conversion in full, shall become mutilated or defaced or be destroyed, lost or stolen, the Issuer may, instead of issuing a
substitute Security (with the Holder’s consent, in the case of convertible Securities), pay or authorize the payment of the
same or convert, or authorize conversion of the same (without surrender thereof except in the case of a mutilated or defaced Security),
if the applicant for such payment shall furnish to the Issuer and to the Trustee and any agent of the Issuer or the Trustee such
security or indemnity as any of them may require to save each of them harmless, and, in every case of destruction, loss or theft,
the applicant shall also furnish to the Issuer and the Trustee and any agent of the Issuer or the Trustee evidence to their satisfaction
of the destruction, loss or theft of such Security and of the ownership thereof.
Every substitute Security
of any series issued pursuant to the provisions of this Section by virtue of the fact that any such Security is destroyed, lost
or stolen shall constitute an additional contractual obligation of the Issuer, 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 (but shall be subject to all the limitations
of rights set forth in) this Indenture equally and proportionately with any and all other Securities of such series duly authenticated
and delivered hereunder. All Securities shall be held and owned upon the express condition that, to the extent permitted by law,
the foregoing provisions are exclusive with respect to the replacement or payment or conversion of mutilated, defaced or destroyed,
lost or stolen Securities and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without
their surrender.
Section 2.10 Cancellation
of Securities; Destruction Thereof. All Securities surrendered for exchange for Securities of the same series or for payment,
redemption, registration of transfer, conversion or for credit against any payment in respect of a sinking or analogous fund, if
surrendered to the Issuer or any agent of the Issuer or the Trustee, shall be delivered to the Trustee for cancellation or, if
surrendered to the Trustee, shall be cancelled by it; and no Securities shall be issued in lieu thereof except as expressly permitted
by any of the provisions of this Indenture. The Trustee shall dispose of cancelled Securities held by it and deliver a certificate
of disposition to the Issuer. If the Issuer shall acquire any of the Securities, such acquisition shall not operate as a redemption
or satisfaction of the Debt represented by such Securities unless and until the same are delivered to the Trustee for cancellation.
Section 2.11 Temporary
Securities. Pending the preparation of definitive Securities for any series, the Issuer may execute and the Trustee shall authenticate
and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced,
in each case in form satisfactory to the Trustee). Temporary Securities of any series shall be issuable in any authorized denomination,
and substantially in the form of the definitive Securities of such series but with such omissions, insertions and variations as
may be appropriate for temporary Securities, all as may be determined by the Issuer with the concurrence of the Trustee as evidenced
by the execution and authentication thereof. Temporary Securities may contain such reference to any provisions of this Indenture
as may be appropriate. Every temporary Security shall be executed by the Issuer and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like effect, as the definitive Securities. Without unreasonable delay
the Issuer shall execute and shall furnish definitive Securities of such series and thereupon temporary Securities of such series
may be surrendered in exchange therefor without charge at each office or agency to be maintained by the Issuer for that purpose
pursuant to Section 3.02 and the Trustee shall authenticate and deliver in exchange for such temporary Securities of such series
an equal aggregate principal amount of definitive Securities of the same series having authorized denominations. Until so exchanged,
the temporary Securities of any series shall be entitled to the same benefits under this Indenture as definitive Securities of
such series, unless the benefits of the temporary Securities are limited pursuant to Section 2.03.
ARTICLE 3
COVENANTS OF THE ISSUER
Section 3.01 Payment
of Principal and Interest. The Issuer covenants and agrees for the benefit of each series of Securities that it will duly and
punctually pay or cause to be paid the principal of, and interest on, each of the Securities of such series (together with any
additional amounts payable pursuant to the terms of such Securities) at the place or places, at the respective times and in the
manner provided in such Securities and in this Indenture. The interest on Securities (together with any additional amounts payable
pursuant to the terms of such Securities) shall be payable only to or upon the written order of the Holders thereof and at the
option of the Issuer may be paid by mailing checks for such interest payable to or upon the written order of such Holders at their
last addresses as they appear on the Security register of the Issuer.
Section 3.02 Offices
for Payments, Etc. The Issuer will maintain (i) in ,
an agency where the Securities of each series may be presented for payment, an agency where the Securities of each series may be
presented for exchange and conversion, if applicable, as provided in this Indenture and an agency where the Securities of each
series may be presented for registration of transfer as in this Indenture provided and (ii) such further agencies in such places
as may be determined for the Securities of such series pursuant to Section 2.03.
The Issuer will maintain
in , an agency where notices and demands to or upon
the Issuer in respect of the Securities of any series or this Indenture may be served.
The Issuer will give to
the Trustee written notice of the location of each such agency and of any change of location thereof. In case the Issuer shall
fail to maintain any agency required by this Section to be located in ,
or shall fail to give such notice of the location or of any change in the location of any of the above agencies, presentations
and demands may be made and notices may be served at the Corporate Trust Office of the Trustee.
The Issuer may from time to time designate
one or more additional agencies where the Securities of a series may be presented for payment, where the Securities of that series
may be presented for exchange or conversion, if applicable, as provided in this Indenture and pursuant to Section 2.03 and where
the Securities of that series may be presented for registration of transfer as in this Indenture provided, and the Issuer may from
time to time rescind any such designation, as the Issuer may deem desirable or expedient; provided, however, that no such designation
or rescission shall in any manner relieve the Issuer of its obligation to maintain the agencies provided for in this Section. The
Issuer will give to the Trustee prompt written notice of any such designation or rescission thereof.
Section 3.03 Appointment
to Fill a Vacancy in Office of Trustee. The Issuer, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 6.10, a Trustee, so that there shall at all times be a Trustee with respect to
each series of Securities hereunder.
Section 3.04 Paying
Agents. Whenever the Issuer shall appoint a paying agent other than the Trustee with respect to the Securities of any series,
it will cause such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section,
(a) that
it will hold all sums received by it as such agent for the payment of the principal of or interest on the Securities of such series
(whether such sums have been paid to it by the Issuer or by any other obligor on the Securities of such series) in trust for the
benefit of the Holders of the Securities of such series or of the Trustee,
(b) that
it will give the Trustee notice of any failure by the Issuer (or by any other obligor on the Securities of such series) to make
any payment of the principal of or interest on the Securities of such series when the same shall be due and payable, and
(c) that
at any time during the continuance of any such failure, upon the written request of the Trustee, it will forthwith pay to the Trustee
all sums so held in trust by such paying agent.
The Issuer will, on or
prior to each due date of the principal of or interest on the Securities of such series, deposit with the paying agent a sum sufficient
to pay such principal or interest so becoming due, and (unless such paying agent is the Trustee) the Issuer will promptly notify
the Trustee of any failure to take such action.
If the Issuer shall act
as its own paying agent with respect to the Securities of any series, it will, on or before each due date of the principal of or
interest on the Securities of such series, set aside, segregate and hold in trust for the benefit of the Holders of the Securities
of such series a sum sufficient to pay such principal or interest so becoming due. The Issuer will promptly notify the Trustee
of any failure to take such action.
Anything in this Section
to the contrary notwithstanding, but subject to Section 10.01, the Issuer may at any time, for the purpose of obtaining a satisfaction
and discharge with respect to one or more or all series of Securities hereunder, or for any other reason, pay or cause to be paid
to the Trustee all sums held in trust for any such series by the Issuer or any paying agent hereunder, as required by this Section,
such sums to be held by the Trustee upon the trusts herein contained.
Anything in this Section
to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section is subject to the provisions of
Sections 10.03 and 10.04.
Section 3.05 Existence.
The Issuer shall do or cause to be done all things necessary to preserve and keep in full force and effect (i) the corporate existence
of the Issuer, (ii) the existence (corporate or other) of each Significant Subsidiary of the Issuer and (iii) the rights (charter
and statutory), licenses and franchises of the Issuer and each of its Significant Subsidiaries; provided, however, that the Issuer
shall not be required to preserve the existence (corporate or other) of any of its Significant Subsidiaries or any such right,
license or franchise of the Issuer or any of its Significant Subsidiaries if the Board of Directors of the Issuer determines that
the preservation thereof is no longer desirable in the conduct of the business of the Issuer and its Significant Subsidiaries taken
as a whole and that the loss thereof will not be disadvantageous in any material respect to the Holders.
Section 3.06 Maintenance
of Properties. The Issuer will, and will cause each of its Significant Subsidiaries to, cause all its properties used or useful
in the conduct of its business to be maintained and kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as
in the judgment of the Issuer may be
necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times; provided, however, that nothing in this Section
shall prevent the Issuer or any Significant Subsidiary from discontinuing the operation and maintenance of any of their respective
properties if such discontinuance is, in the judgment of the Board of Directors of the Issuer desirable in the conduct of its business.
Section 3.07 Insurance.
The Issuer will cause each of its and its Subsidiaries’ insurable properties to be insured against loss or damage in an amount
deemed reasonable by the Board of Directors with insurers of recognized responsibility.
Section 3.08 Payment
of Taxes and Other Claims. The Issuer will pay or discharge or cause to be paid or discharged, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges levied or imposed upon it or any Subsidiary or upon the income,
profits or property of the Issuer or any Subsidiary, and (ii) all lawful claims for labor, materials and supplies which, if unpaid,
might by law become a lien upon the property of the Issuer or any Subsidiary; provided, however, that the Issuer 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 3.09 Written
Statement to Trustee. So long as any Securities are Outstanding hereunder, the Issuer will deliver to the Trustee, within 120
days after the end of each fiscal year of the Issuer ending after the date hereof, a written statement covering the previous fiscal
year, signed by two of its officers (which need not comply with Section 11.05), stating that in the course of the performance of
their duties as officers of the Issuer they would normally have knowledge of any default by the Issuer in the performance or fulfillment
of any covenant, agreement or condition contained in this Indenture, stating whether or not they have knowledge of any such default
and, if so, specifying each such default of which the signers have knowledge and the nature thereof.
ARTICLE 4
SECURITY HOLDERS LISTS AND REPORTS BY THE ISSUER
AND THE TRUSTEE
Section 4.01 Issuer
to Furnish Trustee Information as to Names and Addresses of Security Holders. The Issuer covenants and agrees that it will
furnish or cause to be furnished to the Trustee a list in such form as the Trustee may reasonably require of the names and addresses
of the Holders of the Securities of each series pursuant to Section 312 of the Trust Indenture Act of 1939:
(a) semiannually
and not more than 15 days after each record date for the payment of interest on such Securities, as hereinabove specified, as of
such record date and on dates to be determined pursuant to Section 2.03 for non-interest bearing Securities in each year, and
(b) at
such other times as the Trustee may request in writing, within 30 days after receipt by the Issuer of any such request as of a
date not more than 15 days prior to the time such information is furnished, provided, that, if and so long as the Trustee shall
be the Security registrar (the “Security Registrar”) for such series, such list shall not be required to be furnished.
Section 4.02 Reports
by the Issuer. The Issuer covenants to comply with Section 314(a) of the Trust Indenture Act.
Section 4.03 Reports
by the Trustee. Any Trustee’s report required under Section 313(a) of the Trust Indenture Act of 1939 shall be transmitted
on or before in each year following the date hereof, so long as any Securities are Outstanding hereunder, and shall be dated as
of a date convenient to the Trustee but no more than 60 nor less than 45 days prior thereto. The Trustee shall comply with Sections
313(b), 313(c) and 313(d) of the Trust Indenture Act.
Section 4.04 Preservation
of Information; Communication with Security Holders. (a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders of Securities contained in the most recent list furnished
to it as provided in Section 4.01 and as to the names and addresses of Holders of Securities received by the Trustee in its capacity
as Security Registrar (if acting in such capacity).
(b) The
Trustee may destroy any list furnished to it as provided in Section 4.01 upon receipt of a new list so furnished.
(c) Security
Holders may communicate as provided in Section 312(b) of the Trust Indenture Act with other Security Holders with respect to their
rights under this Indenture or under the Securities. The Issuer, the Trustee, the Security Registrar and any other Person shall
have the protection of Section 312(c) of the Trust Indenture Act.
ARTICLE 5
REMEDIES OF THE TRUSTEE AND SECURITY HOLDERS
ON EVENT OF DEFAULT
Section 5.01 Event of
Default Defined; Acceleration of Maturity; Waiver of Default. “Event of Default”, with respect to Securities of
any series wherever used herein, means each one of the following events which shall have occurred and be continuing (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):
(a) default
in the payment of any installment of interest upon any of the Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days (or such other period as may be established for the Securities
of such series as contemplated by Section 2.03); or
(b) default
in the payment of all or any part of the principal of (or premium or make-whole amount, if any, on) any of the Securities of such
series as and when the same shall become due and payable either at maturity, upon redemption, by declaration or otherwise (and,
if established for the Securities of such series as contemplated by Section 2.03, the continuance of such default for a specified
period), or default in the deposit of any sinking fund payment, to the extent applicable to such series of Securities, when and
as due by the terms of any Security of that series; or
(c) default
in the performance, or breach, of any covenant or agreement of the Issuer in respect of the Securities of such series (other than
a covenant or agreement in respect of the Securities of such series a default in the performance or breach of which is elsewhere
in this Section specifically dealt with), and continuance of such default or breach for a period of 90 days after there has been
given, by registered or certified mail, to the Issuer by the Trustee or to the Issuer and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities of all series affected thereby, a written notice specifying such default
or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or
(d) default
under any bond, debenture, note, mortgage, indenture or instrument under which there may be issued or by which there may be secured
or evidenced any indebtedness for money borrowed by the Issuer (or by any Subsidiary, the repayment of which the Issuer has guaranteed
or for which the Issuer is directly responsible or liable as obligor or guarantor), having an aggregate principal amount outstanding
of at least $30,000,000, whether such indebtedness now exists or shall hereafter be created, which default shall have resulted
in such indebtedness becoming or being declared due and payable prior to the date on which it would otherwise have become due and
payable, without such indebtedness having been discharged, or such acceleration having been rescinded or annulled, within a period
of 30 days after there shall have been given, by registered or certified mail, to the Issuer by the Trustee or to the Issuer and
the Trustee by the Holders of at least 10% in
principal amount of the Outstanding
Securities of that series a written notice specifying such default and requiring the Issuer to cause such indebtedness to be discharged
or cause such acceleration to be rescinded or annulled and stating that such notice is a “Notice of Default” hereunder;
provided, however, that, subject to the provisions of Sections 6.01 and 6.02, the Trustee shall not be deemed to have knowledge
of such default unless either (A) a Responsible Officer of the Trustee shall have knowledge of such default or (B) the Trustee
shall have received written notice thereof from the Issuer, from any Holder, from the holder of any such indebtedness or from the
trustee under any such mortgage, indenture or other instrument; or
(e) a
court having jurisdiction in the premises shall enter pursuant to or within the meaning of any Bankruptcy Law a decree or order
for relief in respect of the Issuer in an involuntary case under any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official)
of the Issuer or any Significant Subsidiary or for all or substantially all of their respective properties and assets or ordering
the winding up or liquidation of their respective affairs, and such decree or order shall remain unstayed and in effect for a period
of 90 consecutive days; or
(f) the
Issuer shall commence a voluntary case under any applicable Bankruptcy Law, insolvency or other similar law now or hereafter in
effect, or consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment
of or taking possession by a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of the Issuer
or for any substantial part of its property and assets, or make any general assignment for the benefit of creditors; or
(g) any
other Event of Default provided for in such series of Securities.
As used in this Section
5.01, the term “Bankruptcy Law” means title 11, U.S. Code or any similar Federal or state law for the relief of debtors.
If an Event of Default
described in clauses (a), (b), (c), (d) or (g) occurs and is continuing, then, and in each and every such case, unless the principal
of all of the Securities of such series shall have already become due and payable, either the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Securities of such series then Outstanding hereunder (each such series voting as
a separate class) by notice in writing to the Issuer (and also to the Trustee if given by Security Holders), may declare the entire
principal (or, if the Securities of such series are Original Issue Discount Securities, such portion of the principal amount as
may be specified in the terms of such series) of all Securities of such series and the interest accrued thereon, if any, to be
due and payable immediately, and upon any such declaration the same shall become immediately due and payable. If an Event of Default
described in clauses (e) or (f) occurs and is continuing, then and in each and every such case, the entire principal (or, if any
Securities are Original Issue Discount Securities, such portion of the principal as may be specified in the terms thereof) of all
the Securities then Outstanding and interest accrued thereon, if any, shall become immediately due and payable.
The foregoing provisions,
however, are subject to the condition that if, at any time after the principal of the Securities of any series shall have been
so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered
as hereinafter provided, the Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay all matured installments
of interest upon all the Securities of such series and the principal of any and all Securities of such series which shall have
become due otherwise than by acceleration (with interest upon such principal and, to the extent that payment of such interest is
enforceable under applicable law, on overdue installments of interest, at the same rate as the rate of interest specified in the
Securities of such series to the date of such payment or deposit) and such amount as shall be sufficient to cover reasonable compensation
to the Trustee, its agents, attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the
Trustee except as a result of negligence or bad faith, and if any and all Events of Default under the Indenture with respect to
such series, other than the non-payment of the principal of Securities of such
series which shall have become due by acceleration,
shall have been cured, waived or otherwise remedied as provided herein—then and in every such case the Holders of a majority
in aggregate principal amount of all the Securities of such series then Outstanding, by written notice to the Issuer and to the
Trustee, may waive all defaults with respect to such series and rescind and annul such declaration and its consequences, but no
such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent
thereon.
Unless otherwise indicated
in the Board Resolution, Officer’s Certificate or supplemental indenture for a series of Original Issue Discount Securities,
for all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been
accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such
declaration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration,
and payment of such portion of the principal thereof as shall be due and payable as a result of such acceleration, together with
interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount
Securities.
Section 5.02 Collection
of Debt by Trustee; Trustee May Prove Debt. The Issuer covenants that (a) in case default shall be made in the payment of any
installment of interest on any of the Securities of any series when such interest shall have become due and payable, and such default
shall have continued for a period of 30 days or (b) in case default shall be made in the payment of all or any part of the principal
of any of the Securities of any series when the same shall have become due and payable, whether upon maturity of the Securities
of such series or upon any redemption or by declaration or otherwise—then, upon demand of the Trustee, the Issuer will pay
to the Trustee for the benefit of the Holders of the Securities of such series the whole amount that then shall have become due
and payable on all Securities of such series for principal or interest, as the case may be (with interest to the date of such payment
upon the overdue principal and, to the extent that payment of such interest is enforceable under applicable law, on overdue installments
of interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified
in the Securities of such series); and, in addition thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including reasonable compensation to the Trustee and each predecessor trustee, their respective agents,
attorneys and counsel, and any expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor trustee
except as a result of its negligence or bad faith.
In case the Issuer shall
fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be
entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid,
and may prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree
against the Issuer or other obligor upon such Securities and collect in the manner provided by law out of the property of the Issuer
or other obligor upon such Securities, wherever situated, the moneys adjudged or decreed to be payable.
In case there shall be
pending proceedings relative to the Issuer or any other obligor upon the Securities under Title 11 of the United States Code or
any other applicable Federal or state bankruptcy, insolvency or other similar law, or in case a receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar official shall have been appointed for or taken possession of
the Issuer or its property or such other obligor or its property, or in case of any other comparable judicial proceedings relative
to the Issuer or other obligor upon the Securities of any series, or to the creditors or property of the Issuer or such other obligor,
the Trustee, irrespective of whether the principal of any 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 pursuant to the provisions of this Section, shall
be entitled and empowered, by intervention in such proceedings or otherwise:
| | (i) to file and prove a claim or claims
for the whole amount of principal and interest (or, if the Securities of any series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such series) owing and unpaid in respect of the Securities
of any series, 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 reasonable compensation to the Trustee and each predecessor trustee, and their respective agents, attorneys
and counsel, and for reimbursement of all expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor
trustee, except as a result of negligence or bad faith) and of the Security Holders allowed in any judicial proceedings relative
to the Issuer or other obligor upon the Securities of any series, or to the creditors or property of the Issuer or such other obligor, |
| | (ii) unless prohibited by applicable law and
regulations, to vote on behalf of the Holders of the Securities of any series in any election of a trustee or a standby trustee
in arrangement, reorganization, liquidation or other bankruptcy or insolvency proceedings or person performing similar functions
in comparable proceedings, and |
| | (iii) to collect and receive any moneys or other property payable
or deliverable on any such claims, and to distribute all amounts received with respect to the claims of the Security Holders and
of the Trustee on their behalf; and any trustee, receiver or liquidator, custodian or other similar official is hereby authorized
by each of the Security Holders to make payments to the Trustee, and, in the event that the Trustee shall consent to the making
of payments directly to the Security Holders, to pay to the Trustee such amounts as shall be sufficient to cover reasonable compensation
to the Trustee, each predecessor trustee and their respective agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor trustee except as a result of negligence or bad faith and
all other amounts due to the Trustee or any predecessor trustee pursuant to Section 6.06. |
Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or vote for or accept or adopt on behalf of any Security Holder
any plan of reorganization, arrangement, adjustment or composition affecting the Securities of any series or the rights of any
Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Security Holder in any such proceeding except,
as aforesaid, to vote for the election of a trustee in bankruptcy or similar person.
All rights of action and
of asserting claims under this Indenture, or under any of the Securities of any series, may be enforced by the Trustee without
the possession of any of the Securities of such series or the production thereof on any trial or other proceedings relative thereto,
and any such action or proceedings instituted by the Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment, subject to the payment of the expenses, disbursements and compensation of the Trustee, each predecessor
trustee and their respective agents and attorneys, shall be for the ratable benefit of the Holders of the Securities in respect
of which such action was taken.
In any proceedings brought
by the Trustee (and also any proceedings involving the interpretation of any provision of this Indenture to which the Trustee shall
be a party), the Trustee shall be held to represent all the Holders of the Securities in respect to which such action was taken,
and it shall not be necessary to make any Holders of such Securities parties to any such proceedings.
Section 5.03 Application
of Proceeds. Any moneys collected by the Trustee pursuant to this Article in respect of any series shall be applied in the
following order at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal
or interest, upon presentation of the several Securities in respect of which monies have been collected and stamping (or otherwise
noting) thereon the payment, or issuing Securities of such series in reduced principal amounts in exchange for the presented Securities
of like series if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the
payment of all amounts due to the Trustee or any predecessor trustee pursuant to Section 6.06;
SECOND: In
case the principal of the Securities of such series in respect of which moneys have been collected shall not have become and be
then due and payable, to the payment of interest on the Securities of such series in default in the order of the maturity of the
installments of such interest, with interest (to the extent that such interest has been collected by the Trustee) upon the overdue
installments of interest, to the extent permitted by applicable law, at the same rate as the rate of interest or Yield to Maturity
(in the case of Original Issue Discount Securities) specified in such Securities, such payments to be made ratably to the Persons
entitled thereto, without discrimination or preference;
THIRD: In case
the principal of the Securities of such series in respect of which moneys have been collected shall have become and shall be then
due and payable, to the payment of the whole amount then owing and unpaid upon all the Securities of such series for principal
and interest, with interest upon the overdue principal, and (to the extent that such interest has been collected by the Trustee)
upon overdue installments of interest, to the extent permitted by applicable law, at the same rate as the rate of interest or Yield
to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of such series; and in case such moneys
shall be insufficient to pay in full the whole amount so due and unpaid upon the Securities of such series, then to the payment
of such principal and interest or Yield to Maturity, without preference or priority of principal over interest or Yield to Maturity,
or of interest or Yield to Maturity over principal, or of any installment of interest over any other installment of interest, or
of any Security of such series over any other Security of such series, ratably to the aggregate of such principal and accrued and
unpaid interest or Yield to Maturity; and
FOURTH: To
the payment of the remainder, if any, to the Issuer or any other Person lawfully entitled thereto.
Section 5.04 Suits for
Enforcement. In case an Event of Default has occurred, has not been waived and is continuing, the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, either at law or in equity or in bankruptcy or otherwise, whether
for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted
in this Indenture or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.
Section 5.05 Restoration
of Rights on Abandonment of Proceedings. In case the Trustee shall have proceeded to enforce any right under this Indenture
and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adversely to the Trustee,
then and in every such case (subject to any determination in such proceeding) the Issuer and the Trustee shall be restored respectively
to their former positions and rights hereunder, and all rights, remedies and powers of the Issuer, the Trustee and the Security
Holders shall continue as though no such proceedings had been taken.
Section 5.06 Limitations
on Suits by Security Holders. No Holder of any Security of any series shall have any right by virtue or by availing of any
provision of this Indenture or any Securities to institute any action or proceeding at law or in equity or in bankruptcy or otherwise
upon or under or with respect to this Indenture or any Securities of any series, or for the appointment of a trustee, receiver,
liquidator, custodian or other similar official or for any other remedy hereunder, unless such Holder previously shall have given
to the Trustee written notice of default and of the continuance thereof, as hereinbefore provided, and unless also the Holders
of not less than 25% in aggregate principal amount of the Securities of such series then Outstanding shall have made written request
upon the Trustee to institute such action or proceedings in its own name as trustee hereunder and shall have offered to the Trustee
such reasonable indemnity as it may require against the costs, expenses and liabilities to be incurred therein
or thereby and the Trustee for 60 days after
its receipt of such notice, request and offer of indemnity shall have failed to institute any such action or proceeding and no
direction inconsistent with such written request shall have been given to the Trustee pursuant to Section 5.09; it being understood
and intended, and being expressly covenanted by the Holder of every Security with every other Holder and the Trustee, that no one
or more Holders of Securities of any series shall have any right in any manner whatever by virtue or by availing of any provision
of this Indenture to affect, disturb or prejudice the rights of any other such Holder of Securities, or to obtain or seek to obtain
priority over or preference to any other such Holder or to enforce any right under this Indenture, except in the manner herein
provided and for the equal, ratable and common benefit of all Holders of Securities of the applicable series. For the protection
and enforcement of the provisions of this Section, each and every Security Holder and the Trustee shall be entitled to such relief
as can be given either at law or in equity.
Section 5.07 Unconditional
Right of Security Holders to Institute Certain Suits. Notwithstanding any other provision in this Indenture and any provision
of any Security, the right of any Holder of any Security to receive payment of the principal of and interest on such Security
on or after the respective due dates expressed in such Security in accordance with the terms hereof and thereof, or to institute
suit for the enforcement of any such payment on or after such respective dates, or for the enforcement of such conversion right,
shall not be impaired or affected without the consent of such Holder; it being understood and intended, and being expressly covenanted
by the Holder of every Security with every other Holder and the Trustee, that no one or more Holders of Securities of any series
shall have any right in any manner whatever by virtue or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of any other such Holder of Securities, or to obtain or seek to obtain priority over or preference to any
other such Holder or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable
and common benefit of all Holders of Securities of the applicable series. For the protection and enforcement of the provisions
of this Section, each and every Security Holder and the Trustee shall be entitled to such relief as can be given either at law
or in equity.
Section 5.08 Powers
and Remedies Cumulative; Delay or Omission Not Waiver of Default. Except as provided in Section 5.06, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders of Securities is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
No delay or omission of
the Trustee or of any Holder of Securities to exercise any right or power accruing upon any Event of Default occurring and continuing
as aforesaid shall impair any such right or power or shall be construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to Section 5.06, every power and remedy given by this Indenture or by law to the Trustee or to the Holders
of Securities may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders of
Securities.
Section 5.09 Control
by Holders of Securities. The Holders of a majority in aggregate principal amount of the Securities of each series affected
(with each series voting as a separate class) at the time Outstanding 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 by this Indenture; provided, that such direction shall not be otherwise than in accordance
with law and the provisions of this Indenture and provided, further, that (subject to the provisions of Section 6.01) the Trustee
shall have the right to decline to follow any such direction if the Trustee, being advised by counsel, shall determine that the
action or proceeding so directed may not lawfully be taken or if the Trustee in good faith by its board of directors, the executive
committee, or a trust committee of directors or Responsible Officers of the Trustee shall determine that the action or proceedings
so directed would involve the Trustee in personal liability or if the Trustee in good faith shall so determine that the actions
or forbearances specified in or pursuant to such direction would be unduly
prejudicial to the interests of Holders of
the Securities of all series so affected not joining in the giving of said direction, it being understood that (subject to Section
6.01) the Trustee shall have no duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders.
Nothing in this Indenture
shall impair the right of the Trustee in its discretion to take any action deemed proper by the Trustee and which is not inconsistent
with such direction or directions by Security Holders.
Section 5.10 Waiver
of Past Defaults. Prior to the declaration of the acceleration of the maturity of the Securities of any series as provided
in Section 5.01, the Holders of a majority in aggregate principal amount of the Securities of such series at the time Outstanding,
by notice to the Trustee, may on behalf of the Holders of all the Securities of such series waive any existing default in the performance
of any of the covenants contained herein or established pursuant to Section 2.03 with respect to such series and its consequences,
except a default in the payment of the principal of, or interest on, any of the Securities of that series as and when the same
shall become due by the terms of such Securities. In the case of any such waiver, the Issuer, the Trustee and the Holders of the
Securities of such series shall be restored to their former positions and rights hereunder, respectively, such default shall cease
to exist and be deemed to have been cured and not to have occurred, and any Event of Default arising therefrom shall be deemed
to have been cured, and not to have occurred for every purpose of this Indenture; but no such waiver shall extend to any subsequent
or other default or Event of Default or impair any right consequent thereon.
Section 5.11 Trustee
to Give Notice of Default. The Trustee shall, within 90 days after the occurrence of a default with respect to the Securities
of any series, give notice of all defaults with respect to that series known to the Trustee to all Holders of Securities of such
series in the manner and to the extent provided in Section 4.03, unless in each case such defaults shall have been cured before
the mailing or publication of such notice (the term “defaults” for the purpose of this Section being hereby
defined to mean any event or condition which is, or with notice or lapse of time or both would become, an Event of Default); provided,
that, except in the case of default in the payment of the principal of or interest on any of the Securities of such series, or
in the payment of any sinking fund installment on 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 or trustees and/or Responsible Officers
of the Trustee in good faith determines that the withholding of such notice is in the interests of the Security Holders of such
series.
Section 5.12 Right of
Court to Require Filing of Undertaking to Pay Costs. All parties to this Indenture agree, and each Holder of any Security by
his or her acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken, suffered or omitted
by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions
of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Security Holder or group of
Security Holders of any series holding in the aggregate more than 10% in aggregate principal amount of the Securities of such series,
or to any suit instituted by any Security Holder for the enforcement of the payment of the principal of or interest on any Security
of such series, on or after the respective due dates expressed in such Security or established pursuant to this Indenture.
Section 5.13 Waiver
of Usury, Stay or Extension Laws. The Issuer 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 usury, 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 Issuer (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
Section 5.14 Undertaking
for Costs. All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture,
or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit
of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable
attorneys’ fees and expenses, against any party litigant in such suit having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount
of the Outstanding Securities of any series, or to any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium or make-whole amount, if any) or interest on any Security on or after the respective stated maturities
expressed in such Security (or, in the case of redemption, on or after the redemption date).
ARTICLE 6
CONCERNING THE TRUSTEE
Section 6.01 Duties
and Responsibilities of the Trustee; During Default; Prior to Default. With respect to the Holders of any series of Securities
issued hereunder, the Trustee, prior to the occurrence of an Event of Default with respect to the Securities of a particular series
and after the curing or waiving of all Events of Default which may have occurred with respect to such series, undertakes to perform
such duties and only such duties as are specifically set forth in this Indenture. In case an Event of Default with respect to the
Securities of a series has occurred (which has not been cured or waived), 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.
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.
Section 6.02 Certain
Rights of the Trustee. In furtherance of and subject to the Trust Indenture Act of 1939 and subject to Section 6.01:
(a) in
the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; but, in the case of any such statements, 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;
(b) the
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Responsible Officers of the
Trustee, 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 5.09 relating to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(d) none
of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise of any of its rights or powers if there shall be
reasonable ground for believing that the repayment of such funds or adequate indemnity against such liability is not reasonably
assured to it;
(e) the
Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate or
any other certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture, note, security
or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(f) any
request, direction, order or demand of the Issuer mentioned herein shall be sufficiently evidenced by an Officer’s Certificate
(unless other evidence in respect thereof be herein specifically prescribed); and any resolution of the Board of Directors may
be evidenced to the Trustee by a copy thereof certified by the secretary or an assistant secretary of the Issuer;
(g) the
Trustee may consult with counsel and any advice or Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel;
(h) the
Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Indenture at the request, order
or direction of any of the Security Holders pursuant to the provisions of this Indenture, unless such Security Holders shall have
offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred therein
or thereby;
(i) the
Trustee shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(j) prior
to the occurrence of an Event of Default hereunder and after the curing or waiving of all Events of Default, 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, consent, order, approval, appraisal, bond, debenture, note, security, or other paper or document
unless requested in writing so to do by the Holders of not less than a majority in aggregate principal amount of the Securities
of all series affected then Outstanding; provided, that, if the payment within a reasonable time to the Trustee of the costs, expenses
or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require reasonable indemnity
against such expenses or liabilities as a condition to proceeding; the reasonable expenses of every such investigation shall be
paid by the Issuer or, if paid by the Trustee or any predecessor trustee, shall be repaid by the Issuer upon demand; and
(k) 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 not regularly in its employ and the Trustee shall not be responsible for any misconduct or negligence on the part
of any such agent or attorney appointed with due care by it hereunder.
Section 6.03 Trustee
Not Responsible for Recitals, Disposition of Securities or Application of Proceeds Thereof. The recitals contained herein and
in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements of the Issuer, and
the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representation as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee shall not be accountable for the use or application by the Issuer
of any of the Securities or of the proceeds thereof.
Section 6.04 Trustee
and Agents May Hold Securities; Collections, Etc. The Trustee or any agent of the Issuer or the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not the Trustee
or such agent and may otherwise deal with the Issuer and
receive, collect, hold and retain collections
from the Issuer with the same rights it would have if it were not the Trustee or such agent.
Section 6.05 Moneys
Held by Trustee. Subject to the provisions of Section 10.04 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other
funds except to the extent required by mandatory provisions of law. Neither the Trustee nor any agent of the Issuer or the Trustee
shall be under any liability for interest on any moneys received by it hereunder.
Section 6.06 Compensation
and Indemnification of Trustee and Its Prior Claim. The Issuer covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, such reasonable compensation (which shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust) as the Issuer and the Trustee may from time to time agree in writing and,
except as otherwise expressly provided herein, the Issuer covenants and agrees to pay or reimburse the Trustee and each predecessor
trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by or on behalf of it in accordance
with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its counsel
and of all agents and other persons not regularly in its employ) except any such expense, disbursement or advance as may arise
from its negligence or bad faith. The Issuer also covenants to indemnify the Trustee and each predecessor trustee for, and to hold
it harmless against, any loss, liability or expense incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this Indenture or the trusts hereunder and its duties hereunder, including
the costs and expenses of defending itself against or investigating any claim of liability in the premises. The obligations of
the Issuer under this Section to compensate and indemnify the Trustee and each predecessor trustee and to pay or reimburse the
Trustee and each predecessor trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the satisfaction and discharge of this Indenture. Such additional indebtedness shall be a senior claim to that
of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit
of the Holders of particular Securities, and the Securities are hereby subordinated to such senior claim.
Section 6.07 Right of
Trustee to Rely on Officer’s Certificate, Etc. Subject to Sections 6.01 and 6.02, whenever in the administration of the
trusts of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking
or suffering or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed)
may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and established
by an Officer’s Certificate delivered to the Trustee, and such certificate, in the absence of negligence or bad faith on
the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions
of this Indenture upon the faith thereof.
Section 6.08 Disqualification;
Conflicting Interests. If the Trustee has or shall acquire any “conflicting interest” within the meaning of Section
310(b) of the Trust Indenture Act, the Trustee and the Issuer shall in all respects comply with the provisions of Section 310(b)
of the Trust Indenture Act.
Section 6.09 Persons
Eligible for Appointment as Trustee. The Trustee for each series of Securities hereunder shall at all times be a corporation
having a combined capital and surplus of at least $50,000,000 and shall be eligible in accordance with the provisions of Section
310(a) of the Trust Indenture Act of 1939. If such corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of a Federal, State or District of Columbia supervising or examining authority, then, for the purposes of
this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published.
Section 6.10 Resignation
and Removal; Appointment of Successor Trustee. (a) The Trustee, or any trustee or trustees hereafter appointed, may at any
time resign with respect to one or more or all series of Securities by giving written notice of resignation to the Issuer and by
mailing notice of such resignation to the Holders of then Outstanding Securities of each series affected at their addresses as
they shall appear on the Security register. Upon receiving such notice of resignation, the Issuer shall promptly appoint a successor
trustee or trustees with respect to the applicable series by written instrument in duplicate, executed by authority of the Board
of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee or
trustees. If no successor trustee shall have been so appointed with respect to any series and have accepted appointment within
30 days after the mailing of such notice of resignation, the resigning trustee may petition any court of competent jurisdiction
for the appointment of a successor trustee, or any Security Holder who has been a bona fide Holder of a Security or Securities
of the applicable series for at least six months may, on behalf of himself or herself and all others similarly situated, petition
any such court for the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, appoint a successor trustee.
| | (b) In case at any time any of the following shall occur: |
| | (i) the Trustee shall fail to comply
with the provisions of Section 310(b) of the Trust Indenture Act of 1939 with respect to any series of Securities after written
request therefor by the Issuer or by any Security Holder who has been a bona fide Holder of a Security or Securities of such series
for at least six months; or |
| | (ii) the Trustee shall cease to be eligible
in accordance with the provisions of Section 310(a) of the Trust Indenture Act of 1939 and shall fail to resign after written request
therefor by the Issuer or by any Security Holder; or |
| | (iii) the Trustee shall become incapable of acting
with respect to any series of Securities, or shall be adjudged bankrupt or insolvent, or a receiver or liquidator 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 Issuer may
remove the Trustee with respect to the applicable series of Securities and appoint a successor trustee for such series by written
instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee
so removed and one copy to the successor trustee, or, (B) subject to Section 315(e) of the Trust Indenture Act of 1939, any Security
Holder who has been a bona fide Holder of a Security or Securities of such series for at least six months may on behalf of himself
or herself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee with respect to such series. Such court may thereupon, after such notice, if any, as it may
deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The
Holders of a majority in aggregate principal amount of the Securities of each series at the time Outstanding may at any time remove
the Trustee with respect to Securities of such series and, with the consent of the Issuer, appoint a successor trustee with respect
to the Securities of such series by delivering to the Trustee so removed, to the successor trustee so appointed and to the Issuer
the evidence provided for in Section 7.01 of the action in that regard taken by the Security Holders.
(d) Any
resignation or removal of the Trustee with respect to any series and any appointment of a successor trustee with respect to such
series pursuant to any of the provisions of this Section 6.10 shall become effective upon acceptance of appointment by the successor
trustee as provided in Section 6.11.
Section 6.11 Acceptance
of Appointment by Successor Trustee. Any successor trustee appointed as provided in Section 6.10 shall execute and deliver
to the Issuer and to its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee with respect to all
or any applicable series shall become effective
and such successor trustee, without any further act, deed or conveyance, shall become vested with all rights, powers, duties and
obligations with respect to such series of its predecessor hereunder, with like effect as if originally named as trustee for such
series hereunder; but, nevertheless, on the written request of the Issuer or of the successor trustee, upon payment of its charges
then unpaid, the trustee ceasing to act shall, subject to Section 10.04, pay over to the successor trustee all moneys at the time
held by it hereunder and shall execute and deliver an instrument transferring to such successor trustee all such rights, powers,
duties and obligations. Upon request of any such successor trustee, the Issuer shall execute any and all instruments in writing
for more fully and certainly vesting in and confirming to such successor trustee all such rights and powers. Any trustee ceasing
to act shall, nevertheless, retain a prior claim upon all property or funds held or collected by such trustee to secure any amounts
then due it pursuant to the provisions of Section 6.06.
If a successor trustee
is appointed with respect to the Securities of one or more (but not all) series, the Issuer, the predecessor trustee and each successor
trustee with respect to the Securities of any applicable series shall execute and deliver an indenture supplemental hereto which
shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties
of the predecessor trustee with respect to the Securities of any series as to which the predecessor trustee is not retiring shall
continue to be vested in the predecessor trustee, and shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, it being understood
that nothing herein or in such supplemental indenture shall constitute such trustees co-trustees of the same trust and that each
such trustee shall be trustee of a trust or trusts under separate indentures.
No successor trustee with
respect to any series of Securities shall accept appointment as provided in this Section 6.11 unless at the time of such acceptance
such successor trustee shall be qualified under the provisions of Section 310(b) of the Trust Indenture Act of 1939 and eligible
under the provisions of Section 310(a) of the Trust Indenture Act of 1939.
Upon acceptance of appointment
by any successor trustee as provided in this Section 6.11, the Issuer shall mail notice thereof to the Holders of Securities of
each series affected, by mailing such notice to such Holders at their addresses as they shall appear on the Security register.
If the acceptance of appointment is substantially contemporaneous with the resignation, then the notice called for by the preceding
sentence may be combined with the notice called for by Section 6.10. If the Issuer fails to mail such notice within ten days after
acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be given at the expense of
the Issuer.
Section 6.12 Merger,
Conversion, Consolidation or Succession to Business of Trustee. 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 the corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder; provided, that such corporation shall be qualified under the provisions of Section 310(b) of the Trust Indenture Act
of 1939 and eligible under the provisions of Section 310(a) of the Trust Indenture Act of 1939, without the execution or filing
of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
In case, at the time such
successor to the Trustee shall succeed to the trusts created by this Indenture, any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor
trustee and deliver such Securities so authenticated; and, in case at that time any of the Securities of any series shall not have
been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder
or in the name of the successor trustee; and in all such cases such certificate shall have the full force which it is anywhere
in the Securities of such series or in this Indenture provided that the certificate of the Trustee shall have; provided, that the
right to adopt the
certificate of authentication of any predecessor
trustee or to authenticate Securities of any series in the name of any predecessor trustee shall apply only to its successor or
successors by merger, conversion or consolidation.
Section 6.13 Preferential
Collection of Claims Against the Issuer. The Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding
any creditor relationship described in Section 311(b) of the Trust Indenture Act. A Trustee who has resigned or been removed shall
be subject to Section 311(a) of the Trust Indenture Act to the extent included therein.
ARTICLE 7
CONCERNING THE SECURITY HOLDERS
Section 7.01 Evidence
of Action Taken by Security Holders. Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in principal amount of the Security Holders of any or
all series may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such specified
percentage of Security Holders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are delivered to the Trustee. Proof of execution of any
instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Sections
6.01 and 6.02) conclusive in favor of the Trustee and the Issuer, if made in the manner provided in this Article.
Section 7.02 Proof of
Execution of Instruments and of Holding of Securities. Subject to Sections 6.01 and 6.02, the execution of any instrument by
a Holder or his agent or proxy may be proved in accordance with such reasonable rules and regulations as may be prescribed by the
Trustee or in such manner as shall be satisfactory to the Trustee. The holding of Securities shall be proved by the Security register
or by a certificate of the registrar thereof. The Issuer may set a record date for purposes of determining the identity of Holders
of any series entitled to vote or consent to any action referred to in Section 7.01, which record date may be set at any time or
from time to time by notice to the Trustee, for any date or dates (in the case of any adjournment or reconsideration) not more
than 60 days nor less than five days prior to the proposed date of such vote or consent, and thereafter, notwithstanding any other
provisions hereof, only Holders of such series of record on such record date shall be entitled to so vote or give such consent
or revoke such vote or consent. Notice of such record date may be given before or after any request for any action referred to
in Section 7.01 is made by the Issuer.
Section 7.03 Holders
to Be Treated as Owners. The Issuer, the Trustee and any agent of the Issuer or of the Trustee may deem and treat the Person
in whose name any Security shall be registered upon the Security register for such series as the absolute owner of such Security
(whether or not such Security shall be overdue and notwithstanding any notation of ownership or other writing thereon) for the
purpose of receiving payment of or on account of the principal of, and, subject to the provisions of this Indenture, interest on,
such Security and for all other purposes; and neither the Issuer nor the Trustee nor any agent of the Issuer or the Trustee shall
be affected by any notice to the contrary. All such payments so made to any such Person, or upon his or her order, shall be valid,
and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for moneys payable.
Section 7.04 Securities
Owned by Issuer Deemed Not Outstanding. In determining whether the Holders of the requisite aggregate principal amount of Outstanding
Securities of any or all series have concurred in any direction, consent or waiver under this Indenture, Securities which are owned
by the Issuer or any other obligor on the Securities with respect to which such determination is being made or by any Person directly
or indirectly controlling or controlled by or under direct or indirect common control with the Issuer or any other obligor on the
Securities with respect to which such determination is being made shall be disregarded and deemed not to be Outstanding for the
purpose of any such determination, except that, for the purpose of determining whether the Trustee shall be protected in relying
on any such direction, consent or waiver, only Securities which the Trustee knows are so owned shall be so disregarded. Securities
so owned which have been pledged in good faith may be regarded as Outstanding 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 Issuer or any other obligor upon the Securities or any Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Issuer or any other obligor on the Securities. In case of a dispute as to such
right, the advice of counsel shall be full protection in respect of any decision made by the Trustee in accordance with such advice.
Section 7.05 Right of
Revocation of Action Taken. At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 7.01,
of the taking of any action by the Holders of the percentage in aggregate principal amount of the Securities of any or all series,
as the case may be, specified in this Indenture in connection with such action, any Holder of a Security the serial number of which
is shown by the evidence to be included among the serial numbers of the Securities the Holders of which have consented to such
action may, by filing written notice at the Corporate Trust Office and upon proof of holding as provided in this Article, revoke
such action so far as concerns such Security. Except as aforesaid, any such action taken by the Holder of any Security shall be
conclusive and binding upon such Holder and upon all future Holders and owners of such Security and of any Securities issued in
exchange or substitution therefor or on registration of transfer thereof, irrespective of whether or not any notation in regard
thereto is made upon any such Security. Any action taken by the Holders of the percentage in aggregate principal amount of the
Securities of any or all series, as the case may be, specified in this Indenture in connection with such action shall be conclusively
binding upon the Issuer, the Trustee and the Holders of all the Securities affected by such action.
ARTICLE 8
SUPPLEMENTAL INDENTURES
Section 8.01 Supplemental
Indentures Without Consent of Security Holders. The Issuer, when authorized by a resolution of its Board of Directors, and
the Trustee may from time to time and at any time, without the consent of any of the Security Holders, enter into an indenture
or indentures supplemental hereto in form satisfactory to the Trustee for one or more of the following purposes:
(a) to
convey, transfer, assign, mortgage or pledge to the Trustee as security for the Securities of one or more series any property or
assets;
(b) to
evidence the succession of a corporation, limited liability company, partnership or trust to the Issuer, or successive successions,
and the assumption by such successor of the covenants, agreements and obligations of the Issuer pursuant to Article 9;
(c) to
add to the covenants of the Issuer such further covenants, restrictions, conditions or provisions as its Board of Directors and
the Trustee shall consider to be for the protection of the Holders of Securities, and to make the occurrence, or the occurrence
and continuance, of a default in any such additional covenants, restrictions, conditions or provisions an Event of Default permitting
the enforcement of all or any of the several remedies provided in this Indenture as herein set forth; provided, that in respect
of any such additional covenant, restriction, condition or provision such supplemental indenture may provide for a particular period
of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide for
an immediate enforcement upon such an Event of Default or may limit the remedies available to the Trustee upon such an Event of
Default or may limit the right of the Holders of a majority in aggregate principal amount of the Securities of such series to waive
such an Event of Default;
(d) to
cure any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other provision
herein, to conform this Indenture to or any supplemental indenture to the description of the Securities set forth in any prospectus
or prospectus supplement related to such series of Securities, 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, provided such provisions shall
not adversely affect the interests of the Holders of Securities of any series or any related coupons in any material respect;
(e) to
provide for or add guarantors for the Securities of one or more series;
(f) to
establish the form or terms of Securities of any series as permitted by Sections 2.01 and 2.03;
(g) 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 6.11;
(h) to
add to, delete from or revise the conditions, limitations and restrictions on the authorized amount, terms, purposes of issue,
authentication and delivery of any series of Securities, as herein set forth, provided that any such deletion or revision shall
become effective only when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture
which is entitled to the benefit of such provision;
(i) to
make any change to the Securities of any series so long as no Securities of such series are Outstanding;
(j) to
conform any provision in this Indenture to the requirements of the Trust Indenture Act; and
(k) to
make any other change that does not adversely affect the interests of the Holders of the Securities in any material respect.
The Trustee shall join
with the Issuer in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations
which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental indenture which affects the Trustee’s own rights,
duties or immunities under this Indenture or otherwise.
Any supplemental indenture
authorized by the provisions of this Section may be executed without the consent of the Holders of any of the Securities at the
time Outstanding, notwithstanding any of the provisions of Section 8.02.
Section 8.02 Supplemental
Indentures With Consent of Security Holders. With the consent (evidenced as provided in Article 7) of the Holders of not less
than a majority in aggregate principal amount of the Securities at the time Outstanding of one or more series affected by such
supplemental indenture (voting as separate series), the Issuer, when authorized by a resolution of the Board of Directors, and
the Trustee may, from time to time and at any time, 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 any supplemental
indenture or of modifying in any manner the rights of the Holders of the Securities of each such consenting series; provided, that
no such supplemental indenture shall, without the consent of the Holder of each Security so affected, (a) extend the final maturity
of any Security, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon,
or reduce any amount payable on redemption thereof, or make the principal thereof (including any amount in respect of original
issue discount) or interest thereon payable in any currency other than that provided in the Securities or in accordance with the
terms thereof, or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon
an acceleration of the maturity thereof pursuant to Section 5.01 or the amount thereof provable in bankruptcy pursuant to Section
5.02, or waive a default in the payment of principal of any Security or interest thereon or change a provision related to the waiver
of past defaults or changes or impair the right of any Security Holder to institute suit for the payment or conversion thereof
or, if the Securities provide therefor, any right of repayment at the option of the Security Holder, or (b) modify any
of the provisions of this section except to
increase any required percentage or to provide that certain other provisions cannot be modified or waived without the consent of
the Holder of each Security so affected, or (c) reduce the aforesaid percentage of Securities of any series, the consent of the
Holders of which is required for any such supplemental indenture or the consent of Holders of which is required for any modification,
amendment or waiver of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences
provided for in this Indenture.
A supplemental indenture
which changes or eliminates any covenant, Event of Default or other provision of this Indenture (1) that has been expressly included
solely for the benefit of one or more particular series of Securities, if any, or (2) which modifies the rights of Holders of Securities
of one or more series with respect to any covenant, Event of Default or provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series with respect to which such covenant, Event of Default or other
provision has not be modified.
Upon the request of the
Issuer, accompanied by a Board Resolution authorizing the execution of any such supplemental indenture, and upon the filing with
the Trustee of evidence of the consent of Security Holders as aforesaid and other documents, if any, required by Section 7.01,
the Trustee shall join with the Issuer in the execution of such supplemental indenture unless such supplemental indenture affects
the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion,
but shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary
for the consent of the Security Holders under this Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution
by the Issuer and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Trustee shall give
a notice thereof to the Holders of then Outstanding Securities of each series affected thereby, by mailing a notice thereof by
first-class mail to such Holders at their addresses as they shall appear on the Security register, and in each case such notice
shall set forth in general terms the substance of such supplemental indenture. Any failure of the Trustee to mail such notice,
or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
Section 8.03 Effect
of Supplemental Indenture. Upon the execution of any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Trustee, the Issuer and the Holders of Securities of each series affected thereby
shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions
of this Indenture for any and all purposes.
Section 8.04 Documents
to Be Given to Trustee. The Trustee, subject to the provisions of Sections 6.01 and 6.02, may receive an Officer’s Certificate
and an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant to this Article 8 complies with
the applicable provisions of this Indenture.
Section 8.05 Notation
on Securities in Respect of Supplemental Indentures. Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to the provisions of this Article may bear a notation in form approved by the Trustee for
such series as to any matter provided for by such supplemental indenture or as to any action taken by Security Holders. If the
Issuer or the Trustee shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee
and the Board of Directors, to any modification of this Indenture contained in any such supplemental indenture may be prepared
by the Issuer, authenticated by the Trustee and delivered in exchange for the Securities of such series then Outstanding.
ARTICLE 9
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 9.01 Issuer
May Consolidate, Etc., on Certain Terms. The Issuer shall not consolidate with or merge into any other Person (in a transaction
in which the Issuer is not the surviving corporation) or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless (a) the Person formed by such consolidation or into which the Issuer is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and assets of the Issuer substantially as an entirety (i) shall
be a corporation, (ii) shall be organized and validly existing under the laws of the United States of America, any State thereof
or the District of Columbia and (iii) shall expressly assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of and interest on all the Securities
and the performance or observance of every covenant of this Indenture on the part of the Issuer to be performed, by supplemental
indenture satisfactory in form to the Trustee, executed and delivered to the Trustee, by the Person formed by such consolidation
or into which the Issuer shall have been merged or by the Person which shall have acquired the Issuer’s assets; (b) immediately
after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Issuer or any Subsidiary
as a result of such transaction as having been incurred by the Issuer or such Subsidiary at the time of 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 (c) the Issuer 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, if a supplemental indenture is required in connection with
such transaction, such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
For purposes of the foregoing,
any sale, assignment, transfer, lease or other conveyance of all or any of the properties and assets of one or more Subsidiaries
of the Issuer (other than to the Issuer or another Subsidiary), which, if such properties and assets were owned by the Issuer,
would constitute all or substantially all of the Issuer’s properties and assets, shall be deemed to be the transfer of all
or substantially all of the properties and assets of the Issuer.
The restrictions in this
Section 9.01 shall not apply to (i) the merger or consolidation of the Issuer with one of its Affiliates, if the Board of Directors
determines in good faith that the purpose of such transaction is principally to change the Issuer’s State of incorporation
or convert the Issuer’s form of organization to another form, or (ii) the merger of the Issuer with or into a single direct
or indirect wholly-owned Subsidiary.
Nothing contained in this
Article shall apply to, limit or impose any requirements upon the consolidation or merger of any Person into the Issuer where the
Issuer is the survivor of such transaction, or the acquisition by the Issuer, by purchase or otherwise, of all or any part of the
property of any other Person (whether or not affiliated with the Issuer).
Section 9.02 Successor
Issuer Substituted. Upon any consolidation of the Issuer with, or merger of the Issuer into, any other Person or any conveyance,
transfer or lease of the properties and assets of the Issuer substantially as an entirety in accordance with Section 9.01, the
successor Person formed by such consolidation or into which the Issuer 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 Issuer under this Indenture with
the same effect as if such successor Person had been named as the Issuer herein, and thereafter, except in the case of a lease,
the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities.
In case of any such consolidation,
merger, sale, lease or conveyance, such changes in phraseology and form (but not in substance) may be made in the Securities thereafter
to be issued as may be appropriate.
ARTICLE 10
SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE;
UNCLAIMED MONEYS
Section 10.01 Satisfaction
and Discharge of Indenture; Defeasance. (a) If at any time
(i)
the Issuer shall have paid or caused to be paid the principal of and interest on all the Securities of any series Outstanding hereunder
(other than Securities of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided
in Section 2.09) as and when the same shall have become due and payable, or
(ii) the
Issuer shall have delivered to the Trustee for cancellation all Securities of any series theretofore authenticated (other than
any Securities of such series which shall have been destroyed, lost or stolen and which shall have been replaced or paid as provided
in Section 2.09) or
(iii) in
the case of any series of Securities the exact amount (including the currency of payment) of principal of and interest due on which
on the dates referred to in clause (B) below can be determined at the time of making the deposit referred to in such clause,
(A) all
the Securities of such series not theretofore delivered to the Trustee for cancellation shall have become due and payable, or are
by their terms to become due and payable within one year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and
(B) the
Issuer shall have irrevocably deposited or caused to be deposited with the Trustee as trust funds the entire amount in cash (other
than moneys repaid by the Trustee or any paying agent to the Issuer in accordance with Section 10.04) or, in the case of any series
of Securities the payments on which may only be made in Dollars, U.S. Government Obligations maturing as to principal and interest
in such amounts and at such times as will insure the availability of cash sufficient to pay on any subsequent interest payment
date all interest due on such interest payment date on the Securities of such series and to pay at maturity or upon redemption
all Securities of such series (in each case other than any Securities of such series which shall have been destroyed, lost or stolen
and which shall have been replaced or paid as provided in Section 2.09) not theretofore delivered to the Trustee for cancellation,
including principal and interest due or to become due to such date of maturity, as the case may be, and if, in any such case (i),
(ii) or (iii), the Issuer shall also pay or cause to be paid all other sums payable hereunder by the Issuer, including amounts
due the Trustee pursuant to Section 6.06, with respect to Securities of such series, then this Indenture shall cease to be of further
effect with respect to Securities of such series (except as to (1) rights of registration of transfer, conversion and exchange
of Securities of such series and the Issuer’s right of optional redemption, (2) substitution of mutilated, defaced, destroyed,
lost or stolen Securities, (3) rights of Holders of Securities to receive, solely from the trust fund described in Section 10.01(a)(iii)(B),
payments of principal thereof and interest thereon, upon the original stated due dates therefor (but not upon acceleration) and
remaining rights of the Holders to receive, solely from the trust fund described in Section 10.01(a)(iii)(B), sinking fund payments,
if any, (4) the rights (including the Trustee’s rights under Section 10.05) and immunities of the Trustee hereunder and the
Trustee’s obligations under Sections 10.02 and 10.04 and (5) the obligations of the Issuer under Section 3.02), and the Trustee,
on demand of the Issuer accompanied by an Officer’s Certificate and an Opinion of Counsel which complies with Section 11.05
and at the cost and expense of the Issuer, shall execute proper instruments acknowledging such satisfaction of and discharging
this Indenture with respect to such series. The Issuer agrees to reimburse the Trustee for any costs or expenses thereafter reasonably
and properly incurred and to compensate the Trustee for any services thereafter reasonably and properly rendered by the Trustee
in connection with this Indenture or the Securities of such series.
(b) The
following subsection shall apply to the Securities of each series unless specifically otherwise provided in a Board Resolution,
Officer’s Certificate or indenture supplemental hereto provided pursuant to Section 2.03. In addition to the right to discharge
of the Indenture pursuant to subsection (a) above, the Issuer, at its option and at any time, by written notice by an officer delivered
to the Trustee, may elect to have all of its obligations discharged with all Outstanding Securities of a series (“Legal Defeasance”),
such discharge to be effective on the date that the conditions set forth in clauses (i) through (iv) and (vi) of Section 10.01(d)
are satisfied, and thereafter the Issuer shall be deemed to have paid and discharged the entire Debt on all the Securities of such
a series, and satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned
and this Indenture shall cease to be of further effect with respect to Securities of such series (except as to (1) rights of registration
of transfer, conversion and exchange of Securities of such series, (2) substitution of apparently mutilated, defaced, destroyed,
lost or stolen Securities, (3) rights of Holders of Securities to receive, solely from the trust fund described in Section 10.01(d)(i),
payments of principal thereof and interest thereon, upon the original stated due dates therefor (but not upon acceleration) and
remaining rights of the Holders to receive, solely from the trust fund described in Section 10.01(d)(i), sinking fund payments,
if any, (4) the rights (including the Trustee’s rights under Section 10.05) and immunities of the Trustee hereunder and the
Trustee’s obligations with respect to the Securities of such series under Sections 10.02 and 10.04 and (5) the obligations
of the Issuer under Section 3.02).
(c) The
following subsection shall apply to the Securities of each series unless specifically otherwise provided in a Board Resolution,
Officer’s Certificate or indenture supplemental hereto provided pursuant to Section 2.03. In addition to the right to discharge
of the Indenture pursuant to subsection (a) and to Legal Defeasance pursuant to subsection (b), above, the Issuer, at its option
and at any time, by written notice executed by an officer delivered to the Trustee, may elect to have its obligations under any
covenant contained in this Indenture or in the Board Resolution or supplemental indenture relating to such series pursuant to Section
2.03 discharged with respect to all Outstanding Securities of a series, this Indenture and any indentures supplemental to this
Indenture with respect to such series (“Covenant Defeasance”), such discharge to be effective on the date the
conditions set forth in clauses (i) through (iii) and (v) through (vi) of Section 10.01(d) are satisfied, and such Securities shall
thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration of Security
Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be “Outstanding”
for all other purposes under this Indenture. For this purpose, such Covenant Defeasance means that, with respect to the Outstanding
Securities of a series, the Issuer may omit to comply with and shall have no liability in respect of any term, condition or limitation
set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant
or by reason of reference in any such covenant to any other provision herein or in any other document and such omission to comply
shall not constitute an Event of Default under Section 5.01(c) or otherwise, but except as specified in this Section 10.01(c),
the remainder of the Issuer’s obligations under the Securities of such series, this Indenture, and any indentures supplemental
to this Indenture with respect to such series shall be unaffected thereby.
(d) The
following shall be the conditions to the application of Legal Defeasance under subsection (b) or Covenant Defeasance under subsection
(c) to the Securities of the applicable series:
(i) the
Issuer irrevocably deposits or causes to be deposited in trust with the Trustee or, at the option of the Trustee, with a trustee
satisfactory to the Trustee and the Issuer under the terms of an irrevocable trust agreement in form and substance satisfactory
to the Trustee, cash or U.S. Government Obligations that will generate cash sufficient to pay principal of and interest on the
Outstanding Securities of such series to maturity or redemption, as the case may be, and to pay all other amounts payable by it
hereunder, provided that (A) the trustee of the irrevocable trust, if any, shall have been irrevocably instructed to pay such funds
or the proceeds of such U.S. Government Obligations to the Trustee and (B) the Trustee shall have been irrevocably instructed to
apply such funds or the proceeds of such U.S.
Government Obligations to (x) the
principal and interest on all Securities of such series on the date that such principal or interest is due and payable and (y)
any mandatory sinking fund payments on the day on which such payments are due and payable in accordance with the terms of the Indenture
and the Securities of such series, and the Issuer shall also pay or cause to be paid all other amounts payable hereunder with respect
to such series;
(ii) the
Issuer delivers to the Trustee an Officer’s Certificate stating that all conditions precedent specified herein relating to
Legal Defeasance or Covenant Defeasance, as the case may be, have been complied with, and an Opinion of Counsel to the same effect;
(iii) no
Event of Default under subsection (a), (b), (e) or (f) of Section 5.01 shall have occurred and be continuing, and no event which
with notice or lapse of time or both would become such an Event of Default shall have occurred and be continuing, on the date of
such deposit;
(iv) in
the event of an election for Legal Defeasance under subsection (b), the Issuer shall have delivered to the Trustee an Opinion of
Counsel stating that (A) the Issuer has received from, or there has been published by, the Internal Revenue Service a ruling or
(B) since the date of this instrument, there has been a change in the applicable Federal income tax law, in either case (A) or
(B) to the effect that, and based thereon such opinion shall confirm that, the Holders of such Securities will not recognize gain
or loss for Federal income tax purposes as a result of the deposit, defeasance and discharge to be effected with respect to such
Securities and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would be
the case if such deposit, defeasance and discharge were not to occur;
(v) in
the event of an election for Covenant Defeasance under subsection (c), the Issuer shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Holders of such Securities will not recognize gain or loss for Federal income tax purposes as
a result of the deposit and Covenant Defeasance to be effected with respect to such Securities and will be subject to Federal income
tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were
not to occur; and
(vi) notwithstanding
any other provisions of this subsection (d), such defeasance shall be effected in compliance with any additional or substitute
terms, conditions or limitations which may be imposed on the Issuer pursuant to Section 2.03.
After such irrevocable deposit made pursuant
to this Section 10.01(d) and satisfaction of the other conditions set forth in this subsection (d), the Trustee upon request shall
execute proper instruments acknowledging the discharge of the Issuer’s obligations pursuant to this Section 10.01.
Section 10.02 Application
by Trustee of Funds Deposited for Payment of Securities. Subject to Section 10.04, all moneys deposited with the Trustee (or other
trustee) pursuant to Section 10.01 shall be held in trust and applied by it to the payment, either directly or through any paying
agent (including the Issuer acting as its own paying agent), to the Holders of the particular Securities of such series for the
payment or redemption of which such moneys have been deposited with the Trustee, of all sums due and to become due thereon for
principal and interest; but such money need not be segregated from other funds except to the extent required by law.
Section 10.03 Repayment
of Moneys Held by Paying Agent. In connection with the satisfaction and discharge of this Indenture with respect to Securities
of any series, all moneys then held by any paying agent under the provisions of this Indenture with respect to such series of Securities
shall, upon demand of the Issuer, be repaid to it or paid to the Trustee and thereupon such paying agent shall be released from
all further liability with respect to such moneys.
Section 10.04 Return of Moneys Held by Trustee
and Paying Agent Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or any paying agent for the payment
of the principal of, interest on or additional amounts in respect of any Security of any series and not applied but remaining unclaimed
for two years after the date upon which such principal, interest or additional amount shall have become due and payable, shall
be repaid to the Issuer by the Trustee for such series or such paying agent, and the Holder of the Securities of such series shall
thereafter look only to the Issuer for any payment which such Holder may be entitled to collect, and all liability of the Trustee
or any paying agent with respect to such moneys shall thereupon cease.
Section 10.05 Indemnity
for U.S. Government Obligations. The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to Section 10.01 or the principal or interest received
in respect of such obligations.
ARTICLE 11
MISCELLANEOUS PROVISIONS
Section 11.01 No Recourse.
No recourse under or upon any obligation, covenant or agreement of this Indenture, or of any Security, or for any claim based thereon
or otherwise in respect thereof, shall be had against any incorporator, stockholder, officer or director, past, present or future
as such, of the Issuer or of any predecessor or successor corporation, either directly or through the Issuer or any such predecessor
or successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise; it being expressly understood that this Indenture and the obligations issued hereunder are solely corporate
obligations, and that no such personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, stockholders,
officers or directors as such, of the Issuer or of any predecessor or successor corporation, or any of them, because of the creation
of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture
or in any of the Securities or implied therefrom; and that any and all such personal liability of every name and nature, either
at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every such incorporator,
stockholder, officer or director as such, because of the creation of the indebtedness hereby authorized, or under or by reason
of the obligations, covenants or agreements contained in this Indenture or in any of the Securities or implied therefrom, are hereby
expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issuance of
such Securities.
Section 11.02 Provisions
of Indenture for the Sole Benefit of Parties and Holders of Securities. Nothing in this Indenture or in the Securities, expressed
or implied, shall give or be construed to give to any person, firm or corporation, other than the parties hereto and their successors
and the Holders of the Securities any legal or equitable right, remedy or claim under this Indenture or under any covenant or provision
herein contained, all such covenants and provisions being for the sole benefit of the parties hereto and their successors and of
the Holders of the Securities.
Section 11.03 Successors
and Assigns of Issuer Bound by Indenture. All the covenants, stipulations, promises and agreements contained in this Indenture
by or on behalf of the Issuer shall bind its successors and assigns, whether so expressed or not.
Section 11.04 Notices
and Demands on Issuer, Trustee and Holders of Securities. Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the Holders of Securities to or on the Issuer may be given or
served by being deposited postage prepaid, first-class mail (except as otherwise specifically provided herein) addressed (until
another address of the Issuer is filed by the Issuer with the Trustee) to Bankwell Financial Group, Inc., 220 Elm Street, New Canaan,
Connecticut 06840, Attn: Chief Financial Officer. Any notice, direction, request or demand by the Issuer or any Holder of Securities
to or upon the
Trustee shall be deemed to have been sufficiently
given or made, for all purposes, if given or made at ____________, ____________, Attn: _______________.
Where this Indenture provides
for notice to Holders of Securities, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to each Holder entitled thereto, at his or her last address as it appears in the
Security register. In case, by reason of the suspension of or irregularities in regular mail service, it shall be impracticable
to mail notice of any event to Holders of Securities when said notice is required to be given pursuant to any provision of this
Indenture or of the Securities, then any manner of giving such notice as shall be satisfactory to the Trustee shall be deemed to
be a sufficient giving of such notice.
In case, by reason of the
suspension of or irregularities in regular mail service, it shall be impracticable to mail notice to the Issuer when such notice
is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be satisfactory
to the Trustee shall be deemed to be a sufficient giving of such notice.
Neither the failure to
give notice, nor any defect in any notice so given, to any particular Holder of a Security shall affect the sufficiency of such
notice with respect to other Holders of Securities given as provided above.
Where this Indenture provides
for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee,
but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
Section 11.05 Officer’s
Certificates and Opinions of Counsel; Statements to Be Contained Therein. Upon any application or demand by the Issuer to the
Trustee to take any action under any of the provisions of this Indenture, the Issuer shall furnish to the Trustee an Officer’s
Certificate stating that all conditions precedent 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 have been complied with,
except that in the case of any such application or demand as to which the furnishing of such documents is specifically required
by any provision of this Indenture relating to such particular application or demand, no additional certificate or opinion need
be furnished.
Each certificate or opinion
provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for
in this Indenture shall include (a) a statement that the person making such certificate or opinion has read such covenant or condition,
(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based, (c) a statement that, in the opinion of such person, he or she has made such examination
or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition
has been complied with and (d) a statement as to whether or not, in the opinion of such person, such condition or covenant has
been complied with.
Any certificate, statement
or opinion of an officer of the Issuer may be based, insofar as it relates to legal matters, upon a certificate or opinion of or
representations by counsel, unless such officer knows that the certificate or opinion or representations with respect to the matters
upon which his or her certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable
care should know that the same are erroneous. Any certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, information with respect to which is in the possession of the Issuer, upon the certificate, statement or opinion
of or representations by an officer or officers of the Issuer, unless such counsel knows that the certificate, statement or
opinion or representations with respect to
the matters upon which his or her certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise
of reasonable care should know that the same are erroneous.
Any certificate, statement
or opinion of an officer of the Issuer or of counsel may be based, insofar as it relates to accounting matters, upon a certificate
or opinion of or representations by an accountant or firm of accountants in the employ of the Issuer, unless such officer or counsel,
as the case may be, knows that the certificate or opinion or representations with respect to the accounting matters upon which
his or her certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should
know that the same are erroneous.
Any certificate or opinion
of any independent firm of public accountants filed with and directed to the Trustee shall contain a statement that such firm is
independent.
Section 11.06 Payments
Due on Saturdays, Sundays and Holidays. If the date of maturity of interest on or principal of the Securities of any series
or the date fixed for redemption or repayment of any such Security, or the last day on which a Holder has the right to convert
any Security, shall not be a Business Day, then payment of interest or principal, or any conversion, need not be made on such date,
but may be made on the next succeeding Business Day with the same force and effect as if made on the date of maturity or the date
fixed for redemption or on such last day for conversion, and no interest shall accrue for the period after such date.
Section 11.07 Conflict
of Any Provision of Indenture With Trust Indenture Act of 1939. If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with another provision included in this Indenture by operation of Sections 310 to 317, inclusive, of the
Trust Indenture Act of 1939, such incorporated provision shall control.
Section 11.08 New York
Law to Govern. This Indenture and each Security shall be deemed to be a contract under the laws of the State of New York, and
for all purposes shall be governed by and construed in accordance with the laws of such State without regard to any principle of
conflict of laws that would require or permit the application of the laws of any other jurisdiction, except as may otherwise be
required by mandatory provisions of law.
Section 11.09 Counterparts.
This Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together
constitute but one and the same instrument.
Section 11.10 Effect
of Headings. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
Section 11.11 Actions
by Successor. Any act or proceeding by any provision of this Indenture authorized or required to be done or performed by any
board of directors or its equivalent, committee or officer of the Issuer shall and may be done and performed with like force and
effect by the corresponding board, committee or officer of any corporation that shall at the time be the lawful successor of the
Issuer.
Section 11.12 Severability.
In case any one or more of the provisions contained in this Indenture or in the Securities of any series shall for any reason be
held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any
other provisions of this Indenture or of such Securities, but this Indenture and such Securities shall be construed as if such
invalid or illegal or unenforceable provision had never been contained herein or therein.
ARTICLE 12
REDEMPTION OF SECURITIES AND SINKING FUNDS
Section 12.01 Applicability
of Article. The provisions of this Article shall be applicable to the Securities of any series which are redeemable before
their maturity or to any sinking fund for the retirement of Securities of a series, except as otherwise specified, as contemplated
by Section 2.03 for Securities of such series.
Section 12.02 Notice
of Redemption; Partial Redemptions. Notice of redemption to the Holders of Securities of any series to be redeemed as a whole
or in part at the option of the Issuer shall be given by mailing notice of such redemption by first class mail, postage prepaid,
at least 30 days and not more than 60 days prior to the date fixed for redemption to such Holders of Securities of such series
at their last addresses as they shall appear upon the Security register. Any notice which is given in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the Holder receives the notice. Failure to give notice or
any defect in the notice to the Holder of any Security of a series designated for redemption as a whole or in part shall not affect
the validity of the proceedings for the redemption of any other Security of such series.
The notice of redemption
to each such Holder shall specify the principal amount of each Security of such series held by such Holder to be redeemed, the
date fixed for redemption, the redemption price, the place or places of payment, that payment will be made upon presentation and
surrender of such Securities, that such redemption is pursuant to the mandatory or optional sinking fund, or both, if such be the
case, that interest accrued to the date fixed for redemption will be paid as specified in such notice and that on and after said
date interest thereon or on the portions thereof to be redeemed will cease to accrue and shall also specify, if applicable, the
conversion price then in effect and the date on which the right to convert such Securities or the portions thereof to be redeemed
will expire. In case any Security of a series is to be redeemed in part only, the notice of redemption shall state the portion
of the principal amount thereof to be redeemed and shall state that on and after the date fixed for redemption, upon surrender
of such Security, a new Security or Securities of such series in principal amount equal to the unredeemed portion thereof will
be issued.
The notice of redemption
of Securities of any series to be redeemed at the option of the Issuer shall be given by the Issuer or, at the Issuer’s request,
by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified
in the notice of redemption given as provided in this Section, the Issuer will deposit with the Trustee or with one or more paying
agents (or, if the Issuer is acting as its own paying agent, set aside, segregate and hold in trust as provided in Section 3.04)
an amount of money sufficient to redeem on the redemption date all the Securities of such series so called for redemption (other
than those Securities theretofore surrendered for conversion into Common Stock in accordance with their terms) at the appropriate
redemption price, together with accrued interest to the date fixed for redemption. If any Security called for redemption is converted
pursuant hereto and in accordance with the terms thereof, any money deposited with the Trustee or any paying agent or so segregated
and held in trust for the redemption of such Security shall be paid to the Issuer upon the Issuer’s request, or, if then
held by the Issuer, shall be discharged from such trust. The Issuer will deliver to the Trustee at least 10 days prior to the date
the notice required to be delivered to the Holders is to be sent (unless a shorter time period shall be acceptable to the Trustee)
an Officer’s Certificate (which need not comply with Section 11.05) stating the aggregate principal amount of Securities
to be redeemed. In case of a redemption at the election of the Issuer prior to the expiration of any restriction on such redemption,
the Issuer shall deliver to the Trustee, prior to the giving of any notice of redemption to Holders pursuant to this Section, an
Officer’s Certificate stating that such restriction has been complied with.
If less than all the Securities
of a series are to be redeemed, the Trustee shall select, in such manner as it shall deem appropriate and fair, Securities of such
series to be redeemed in whole or in part. Securities may be redeemed in part in multiples equal to the minimum authorized denomination
for Securities of such series or any multiple thereof. The Trustee shall promptly notify the Issuer in writing of the Securities
of such series selected for redemption and, in the case of any Securities of such series 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 of any series shall relate, in the case of any Security redeemed or to be
redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be redeemed. If any Security selected for partial redemption is surrendered
for conversion after such selection, the converted portion of such Security shall be deemed (so far as may be possible) to be the
portion selected for redemption.
Section 12.03 Payment
of Securities Called for Redemption. If notice of redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for redemption, and on and after said date (unless the Issuer
shall default in the payment of such Securities at the redemption price, together with interest accrued to said date) interest
on the Securities or portions of Securities so called for redemption shall cease to accrue, and such Securities shall cease from
and after the date fixed for redemption to be convertible into Common Stock (to the extent otherwise convertible in accordance
with their terms), if applicable, and cease to be entitled to any benefit or security under this Indenture, and except as provided
in the paragraph below, the Holders thereof shall have no right in respect of such Securities except the right to receive the redemption
price thereof and unpaid interest to the date fixed for redemption. On presentation and surrender of such Securities at a place
of payment specified in said notice, said Securities or the specified portions thereof shall be paid and redeemed by the Issuer
at the applicable redemption price, together with interest accrued thereon to the date fixed for redemption; provided, that payment
of interest becoming due on or prior to the date fixed for redemption shall be payable to the Holders of such Securities registered
as such on the relevant record date subject to the terms and provisions of Sections 2.03 and 2.07 hereof.
If any Security called
for redemption shall not be so paid upon surrender thereof for redemption, the principal shall, until paid or duly provided for,
bear interest from the date fixed for redemption at the rate of interest or Yield to Maturity (in the case of an Original Issue
Discount Security) borne by such Security and, if applicable, such Security shall remain convertible into Common Stock until the
principal of such Security shall have been paid or duly provided for.
Upon presentation of any
Security redeemed in part only, the Issuer shall execute and the Trustee shall authenticate and deliver to or on the order of the
Holder thereof, at the expense of the Issuer, a new Security or Securities of such series, of authorized denominations, in principal
amount equal to the unredeemed portion of the Security so presented.
Section 12.04 Exclusion
of Certain Securities from Eligibility for Selection for Redemption. Securities shall be excluded from eligibility for selection
for redemption if they are identified by registration and certificate number in an Officer’s Certificate delivered to the
Trustee at least 40 days prior to the last date on which notice of redemption may be given as being owned of record and beneficially
by, and not pledged or hypothecated by either (a) the Issuer or (b) an entity specifically identified in such written statement
as directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer.
Section 12.05 Mandatory
and Optional Sinking Funds. The minimum amount of any sinking fund payment provided for by the terms of the 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 the Securities of any series is herein referred to as an “optional sinking fund payment”.
The date on which a sinking fund payment is to be made is herein referred to as the “sinking fund payment date”.
In lieu of making all or
any part of any mandatory sinking fund payment with respect to any series of Securities in cash, the Issuer may at its option (a)
deliver to the Trustee Securities of such series theretofore purchased or otherwise acquired (except upon redemption pursuant to
the mandatory sinking fund) by the Issuer or receive credit for Securities of such series (not previously so credited) theretofore
purchased or otherwise acquired (except as aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant to Section
2.10 and, if applicable, receive credit for Securities (not previously so credited) converted into Common Stock and so delivered
to the Trustee for cancellation, (b) receive credit for optional sinking fund payments (not previously so credited)
made pursuant to this Section, or (c) receive
credit for Securities of such series (not previously so credited) redeemed by the Issuer through any optional redemption provision
contained in the terms of such series. Securities so delivered or credited shall be received or credited by the Trustee at the
sinking fund redemption price specified in such Securities.
On or before the 60th day
next preceding each sinking fund payment date for any series, the Issuer will deliver to the Trustee an Officer’s Certificate
(which need not contain the statements required by Section 11.05) (a) specifying the portion of the mandatory sinking fund payment
to be satisfied by payment of cash and the portion to be satisfied by credit of Securities of such series and the basis for such
credit, (b) stating that none of the Securities of such series for which credit will be taken has theretofore been so credited,
(c) stating that no defaults in the payment of interest or Events of Default with respect to such series have occurred (which have
not been waived or cured) and are continuing and (d) stating whether or not the Issuer intends to exercise its right to make an
optional sinking fund payment with respect to such series and, if so, specifying the amount of such optional sinking fund payment
which the Issuer intends to pay on or before the next succeeding sinking fund payment date. Any Securities of such series to be
credited and required to be delivered to the Trustee in order for the Issuer to be entitled to credit therefor as aforesaid which
have not theretofore been delivered to the Trustee shall be delivered for cancellation pursuant to Section 2.10 to the Trustee
with such Officer’s Certificate (or reasonably promptly thereafter if acceptable to the Trustee). Such Officer’s Certificate
shall be irrevocable and upon its receipt by the Trustee the Issuer shall become unconditionally obligated to make all the cash
payments or payments therein referred to, if any, on or before the next succeeding sinking fund payment date. Failure of the Issuer,
on or before any such 60th day, to deliver such Officer’s Certificate and Securities specified in this paragraph, if any,
shall not constitute a default but shall constitute, on and as of such date, the irrevocable election of the Issuer that the mandatory
sinking fund payment for such series due on the next succeeding sinking fund payment date shall be paid entirely in cash without
the option to deliver or credit Securities of such series in respect thereof.
If the sinking fund payment
or payments (mandatory or optional or both) to be made in cash on the next succeeding sinking fund payment date plus any unused
balance of any preceding sinking fund payments made in cash shall exceed $50,000 (or the equivalent thereof in any Foreign Currency
or a lesser sum in Dollars or in any Foreign Currency if the Issuer shall so request) with respect to the Securities of any particular
series, such cash shall be applied on the next succeeding sinking fund payment date to the redemption of Securities of such series
at the sinking fund redemption price together with accrued interest to the date fixed for redemption. If such amount shall be $50,000
(or the equivalent thereof in any Foreign Currency) or less and the Issuer makes no such request then it shall be carried over
until a sum in excess of $50,000 (or the equivalent thereof in any Foreign Currency) is available, which delay in accordance with
this paragraph shall not be a default or breach of the obligation to make such payment. The Trustee shall select, in the manner
provided in Section 12.02, for redemption on such sinking fund payment date a sufficient principal amount of Securities of such
series to which such cash may be applied, as nearly as may be, and shall (if requested in writing by the Issuer) inform the Issuer
of the serial numbers of the Securities of such series (or portions thereof) so selected. The Trustee, in the name and at the expense
of the Issuer (or the Issuer, if it shall so request the Trustee in writing), shall cause notice of redemption of the Securities
of such series to be given in substantially the manner provided in Section 12.02 (and with the effect provided in Section 12.03)
for the redemption of Securities of such series in part at the option of the Issuer. The amount of any sinking fund payments not
so applied or allocated to the redemption of Securities of such series shall be added to the next cash sinking fund payment for
such series and, together with such payment, shall be applied in accordance with the provisions of this Section. Any and all sinking
fund moneys held on the stated maturity date of the Securities of any particular series (or earlier, if such maturity is accelerated),
which are not held for the payment or redemption of particular Securities of such series, shall be applied, together with other
moneys, if necessary, sufficient for the purpose, to the payment of the principal of, and interest on, the Securities of such series
at maturity. The Issuer’s obligation to make a mandatory or optional sinking fund payment shall automatically be reduced
by an amount equal to the sinking fund redemption price allocable to any Securities or portions thereof called for redemption pursuant
to the preceding paragraph on any sinking fund payment date and converted into Common Stock in accordance with the terms of such
Securities; provided that, if the Trustee is not the conversion agent for the
Securities, the Issuer or such conversion agent
shall give the Trustee written notice on or prior to the date fixed for redemption of the principal amount of Securities or portions
thereof so converted.
On or before each sinking
fund payment date, the Issuer shall pay to the Trustee in cash or shall otherwise provide for the payment of all interest accrued
to the date fixed for redemption on Securities to be redeemed on such sinking fund payment date.
The Trustee shall not redeem
or cause to be redeemed any Securities of a series with sinking fund moneys or give any notice of redemption of Securities for
such series by operation of the sinking fund during the continuance of a default in payment of interest on such Securities or of
any Event of Default except that, where the mailing of notice of redemption of any Securities shall theretofore have been made,
the Trustee shall redeem or cause to be redeemed such Securities, provided that it shall have received from the Issuer a sum sufficient
for such redemption. Except as aforesaid, any moneys in the sinking fund for such series at the time when any such default or Event
of Default shall occur, and any moneys thereafter paid into the sinking fund, shall, during the continuance of such default or
Event of Default, be deemed to have been collected under Article 5 and held for the payment of all such Securities. In case such
Event of Default shall have been waived as provided in Section 5.10, or the default cured on or before the 60th day preceding the
sinking fund payment date in any year, such moneys shall thereafter be applied on such sinking fund payment date in accordance
with this Section to the redemption of such Securities.
ARTICLE 13
SUBORDINATION OF SECURITIES
Section 13.01 Agreement
of Subordination. The Issuer covenants and agrees, and each Holder of Securities issued hereunder by its acceptance thereof
likewise covenants and agrees, that all Securities shall be issued subject to the provisions of this Article 13; and each Security
Holder, whether upon original issue or upon transfer or assignment thereof, accepts and agrees to be bound by such provisions.
The payment of the principal
of and interest on all Securities issued hereunder shall, to the extent and in the manner hereinafter set forth, be subordinated
and subject in right of payment to the prior payment in full of all Senior Indebtedness of the Issuer, whether outstanding at the
date of this Indenture or thereafter incurred.
The provisions of this
Article 13 define the subordination of the Securities, as obligations of the Issuer, with respect to Senior Indebtedness of the
Issuer.
No provision of this Article
13 shall prevent the occurrence of any default or Event of Default hereunder.
Section 13.02 Payments
to Security Holders. In the event and during the continuation of any default in the payment of principal, premium, interest
or any other payment due on any Senior Indebtedness of the Issuer continuing beyond the period of grace, if any, specified in the
instrument or lease evidencing such Senior Indebtedness of the Issuer, then, unless and until such default shall have been cured
or waived or shall have ceased to exist, no payment shall be made by the Issuer with respect to the principal of or interest on
the Securities, except sinking fund obligations satisfied by credit of acquired Securities under Section 12.05 prior to the happening
of such default and payments made pursuant to Article 10 hereof from monies deposited with the Trustee pursuant thereto prior to
the happening of such default.
Upon any payment by the
Issuer, or distribution of assets of the Issuer of any kind or character, whether in cash, property or securities, to creditors
upon any dissolution or winding-up or liquidation or reorganization of the Issuer, whether voluntary or involuntary or in bankruptcy,
insolvency, receivership or other proceedings, all amounts due or to become due upon all Senior Indebtedness of the Issuer shall
first be paid in full, or payment thereof provided for in money in accordance with its terms, before any payment is made on account
of the principal or interest on the Securities (except payments made pursuant to Article 10 hereof from monies deposited with the
Trustee pursuant thereto prior to the happening
of such dissolution, winding-up, liquidation or reorganization); and upon any such dissolution or winding-up or liquidation or
reorganization any payment by the Issuer, or distribution of assets of the Issuer of any kind or character, whether in cash, property
or securities, to which the Holders of the Securities or the Trustee would be entitled, except for the provisions of this Article
13, shall (except as aforesaid) be paid by the Issuer or by any receiver, trustee in bankruptcy, liquidating trustee, agent or
other Person making such payment or distribution, or by the Holders of the Securities or by the Trustee under this Indenture if
received by them or it, directly to the holders of Senior Indebtedness of the Issuer (pro rata to such holders on the basis of
the respective amounts of Senior Indebtedness of the Issuer held by such holders, as calculated by the Issuer) or their representative
or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any Senior Indebtedness
of the Issuer may have been issued, as their respective interests may appear, to the extent necessary to pay all Senior Indebtedness
of the Issuer in full, in money or money’s worth, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Indebtedness of the Issuer, before any payment or distribution is made to the Holders of the Securities or
to the Trustee.
In the event that, notwithstanding
the foregoing, any payment or distribution of assets of the Issuer of any kind or character, whether in cash, property or securities,
prohibited by the foregoing, shall be received by the Trustee or the Holders of the Securities before all Senior Indebtedness of
the Issuer is paid in full, or provision is made for such payment in money in accordance with its terms, such payment or distribution
shall be held in trust for the benefit of and shall be paid over or delivered to the holders of Senior Indebtedness of the Issuer
or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments
evidencing any Senior Indebtedness of the Issuer may have been issued, as their respective interests may appear, as calculated
by the Issuer, for application to the payment of all Senior Indebtedness of the Issuer remaining unpaid to the extent necessary
to pay all Senior Indebtedness of the Issuer in full in money in accordance with its terms, after giving effect to any concurrent
payment or distribution to or for the holders of such Senior Indebtedness.
For purposes of this Article
13, the words, “cash, property or securities” shall not be deemed to include shares of stock of the Issuer as reorganized
or readjusted, or securities of the Issuer or any other corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this Article 13 with respect to the Securities to the payment
of all Senior Indebtedness of the Issuer which may at the time be outstanding; provided that (i) the Senior Indebtedness of the
Issuer is assumed by the new corporation, if any, resulting from any such reorganization or readjustment, and (ii) the rights of
the holders of the Senior Indebtedness of the Issuer (other than leases) and of leases which are assumed are not, without the consent
of such holders, altered by such reorganization or readjustment.
The consolidation of the
Issuer with, or the merger of the Issuer into, another corporation or the liquidation or dissolution of the Issuer following the
conveyance or transfer of its property as an entirety, or substantially as an entirety, to another corporation upon the terms and
conditions provided for in Article 9 hereof shall not be deemed a dissolution, winding-up, liquidation or reorganization for the
purposes of this Section 13.02 if such other corporation shall, as a part of such consolidation, merger, conveyance or transfer,
comply with the conditions stated in Article 9 hereof. Nothing in this Section 13.02 shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 6.06.
Section 13.03 Subrogation
of Securities. Subject to the payment in full of all Senior Indebtedness of the Issuer, the rights of the Holders of the Securities
shall be subrogated to the rights of the holders of Senior Indebtedness of the Issuer to receive payments or distributions of cash,
property or securities of the Issuer applicable to the Senior Indebtedness of the Issuer until the principal of and interest on
the Securities shall be paid in full; and, for the purposes of such subrogation, no payments or distributions to the holders of
the Senior Indebtedness of the Issuer of any cash, property or securities to which the Holders of the Securities or the Trustee
would be entitled except for the provisions of this Article 13 to or for the benefit of the holders of Senior Indebtedness of the
Issuer by Holders of the Securities or the Trustee, shall, as between the Issuer, its creditors other than holders of Senior Indebtedness
of the Issuer, and the Holders of the Securities, be deemed to be a payment by the Issuer to or on
account of the Senior Indebtedness of the Issuer.
It is understood that the provisions of this Article 13 are and are intended solely for the purpose of defining the relative rights
of the Holders of the Securities, on the one hand, and the holders of the Senior Indebtedness of the Issuer, on the other hand.
Nothing contained in this
Article 13 or elsewhere in this Indenture or in the Securities is intended to or shall impair, as between the Issuer, its creditors
other than the holders of its Senior Indebtedness, and the Holders of the Securities, the obligation of the Issuer, which is absolute
and unconditional, to pay to the Holders of the Securities the principal of and interest on the Securities as and when the same
shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the Holders
of the Securities and creditors of the Issuer other than the holders of its Senior Indebtedness, nor shall anything herein or therein
prevent the Trustee or the Holder of any Security from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article 13 of the holders of Senior Indebtedness of the Issuer
in respect of cash, property or securities of the Issuer received upon the exercise of any such remedy.
Upon any payment or distribution
of assets of the Issuer referred to in this Article 13, the Trustee, subject to the provisions of Section 6.01, 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 such
dissolution, winding-up, liquidation or reorganization proceedings are pending, or a certificate of the receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or distribution, delivered to the Trustee or to the Holders of the
Securities, for the purpose of ascertaining the Persons entitled to participate in such distribution, the holders of the Senior
Indebtedness and other indebtedness of the Issuer, the amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article 13.
Section 13.04 Authorization
by Security Holders. Each Holder of a Security by its acceptance thereof authorizes and directs the Trustee on its behalf to
take such action as may be necessary or appropriate to effectuate the subordination provided in this Article 13 appoints the Trustee
its attorney-in-fact for any and all such purposes.
Section 13.05 Notice
to Trustee. The Issuer shall give prompt written notice to a Responsible Officer of the Trustee of any fact known to the Issuer
which would prohibit the making of any payment of monies to or by the Trustee in respect of the Securities pursuant to the provisions
of this Article 13.
Notwithstanding the provisions
of this Article 13 or any other provision 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 in respect of the Securities pursuant to
the provisions of this Article 13, unless and until a Responsible Officer of the Trustee shall have received written notice thereof
at the Corporate Trust Office of the Trustee from the Issuer or a holder or holders of Senior Indebtedness of the Issuer or from
any trustee therefor; and before the receipt of any such written notice, the Trustee, subject to the provisions of Section 6.01,
shall be entitled in all respects to assume that no such facts exist; provided that if on a date not fewer than three Business
Days prior to the date upon which by the terms hereof any such monies may become payable for any purpose (including, without limitation,
the payment of the principal of or interest on any Security) the Trustee shall not have received, with respect to such monies,
the notice provided for in this Section 13.05, then, anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such monies and to apply the same to the purpose for which they were received, and shall
not be affected by any notice to the contrary which may be received by it on or after such prior date. Notwithstanding anything
to the contrary hereinbefore set forth, nothing shall prevent any payment by the Issuer or the Trustee to the Security Holders
of monies in connection with a redemption of Securities if (i) notice of such redemption has been given pursuant to Article 12
hereof prior to the receipt by the Trustee of written notice as aforesaid, and (ii) such notice of redemption is given not earlier
than 60 days before the redemption date.
The Trustee conclusively
shall be entitled to rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Indebtedness
of the Issuer (or a trustee on behalf of such holder) to
establish that such notice has been given by
a holder of Senior Indebtedness of the Issuer or a trustee on behalf of any such holder or holders. 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
of the Issuer to participate in any payment or distribution pursuant to this Article 13, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness of the Issuer held by such
Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent
to the rights of such Person under this Article 13, 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 13.06 Trustee’s
Relation to Senior Indebtedness. The Trustee in its individual capacity shall be entitled to all the rights set forth in this
Article 13 in respect of any Senior Indebtedness of the Issuer at any time held by it, to the same extent as any other holder of
Senior Indebtedness of the Issuer and nothing elsewhere in this Indenture shall deprive the Trustee of any of its rights as such
holder.
With respect to the holders
of Senior Indebtedness of the Issuer, the Trustee undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article 13, and no implied covenants or obligations with respect to the holders of Senior
Indebtedness of the Issuer 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 of the Issuer and the Trustee shall not be liable to any holder of Senior Indebtedness
of the Issuer if it shall pay over or deliver to Holders of Securities, the Issuer or any other Person money or assets to which
any holder of Senior Indebtedness of the Issuer shall be entitled by virtue of this Article 13 or otherwise.
Section 13.07 No
Impairment of Subordination. No right of any present or future holder of any Senior Indebtedness of the Issuer to enforce
subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part
of the Issuer or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the Issuer with the
terms, provisions and covenants of this Indenture, regardless of any knowledge thereof which any such holder may have or otherwise
be charged with.
Section 13.08 Rights
of Trustee. Nothing in this Article 13 shall apply to claims of or payments to, the Trustee pursuant to Section 6.06.
[Signature pages follow]
IN WITNESS WHEREOF, the parties hereto have
caused this Indenture to be duly executed as of ________ __, 2015.
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_________________________, Trustee |
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Exhibit 4.3
Form of Senior Note
(FACE OF SECURITY)
[Each Global Security shall bear substantially
the following legend:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR
IN PART FOR SECURITIES IN DEFINITIVE REGISTERED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS SECURITY IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[If the Security has original issue discount
for U.S. federal income tax purposes, insert tax legend:
[FOR PURPOSES OF SECTIONS 1272 , 1273, and
1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (“THE CODE”), THIS SECURITY IS BEING ISSUED WITH ORIGINAL ISSUE
DISCOUNT. THE AMOUNT OF ORIGINAL ISSUE DISCOUNT (AS DEFINED IN SECTION 1273(a)(1) OF THE CODE AND TREASURY REGULATION SECTION 1.1273-1(a))
WITH RESPECT TO THIS SECURITY IS , THE ISSUE DATE (AS DEFINED
IN SECTION 1275(a)(2) OF THE CODE AND TREASURY REGULATION SECTION 1.1273-2(a)(2)) OF THIS SECURITY IS ,
THE ISSUE PRICE (AS DEFINED IN SECTION 1273(b) OF THE CODE AND TREASURY REGULATION SECTION 1.1273-2(a)) OF THIS SECURITY IS ,
AND THE YIELD TO MATURITY (AS DEFINED IN TREASURY REGULATION SECTION 1.1272-1(b)) OF THIS SECURITY IS
.] ]
BANKWELL FINANCIAL GROUP, INC.
[ Title of Security ]
No. [ ] |
CUSIP No.: [ ] |
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[Common Code][ISIN]: [ ] |
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[$ ] |
BANKWELL FINANCIAL GROUP,
INC., a Connecticut corporation (“Issuer”, which term includes any successor corporation), for value received promises
to pay to [If the Security is a Global Security—CEDE & CO.][If the Security is not a Global Security—
] or registered assigns, the principal sum of
on ,
(the “Maturity Date”) [If the Security is to bear interest prior to maturity, insert—, and to pay interest
thereon from or from the most recent interest payment
date to which interest has been paid or duly provided for, [semiannually in arrears on
and in each year], commencing ,
(each, an “Interest Payment Date”) at the rate
of [ % per annum], until the principal hereof is paid or made available for payment [If applicable
insert—, and (to the extent that the payment of such interest shall be legally enforceable) at the rate of %
per annum on any overdue principal and on any overdue installment of interest]. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in the Indenture (as defined below), be paid to the Holder in
whose name this Security (or one or more predecessor Securities) is registered at the close of business on the record date for
such interest, which shall be the or
(whether or not a Business Day), as the case may be, next preceding such Interest Payment Date (each, an “Interest Record
Date”). Interest will be computed on the basis of [a 360-day year of twelve 30-day months].]
[If the Security is not to bear interest
prior to maturity, insert—The principal of this Security shall not bear interest except in the case of a default in payment
of principal upon acceleration, upon redemption or at maturity and, in each such case, the overdue principal of this Security shall
bear interest at the rate of % per annum (to the extent that the payment of such interest shall be legally enforceable), which
shall accrue from the date of such default in payment to the date payment of such principal has been made or duly provided for.
Interest on any overdue principal shall be payable on demand.]
Reference is made to the further provisions
set forth on the reverse of this Security contained herein, which will for all purposes have the same effect as if set forth at
this place.
IN WITNESS WHEREOF, the Issuer has caused this
Security to be signed manually or by facsimile by its duly authorized officer under its corporate seal.
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BANKWELL FINANCIAL GROUP, INC. |
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By: |
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Name: |
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Title: |
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This is one of the Securities of the series
designated herein and referred to in the within-mentioned Indenture.
Dated: [ ]
(REVERSE OF SECURITY)
BANKWELL FINANCIAL GROUP, INC.
[ Title of Security ]
This Security is one
of a duly authorized issue of debentures, notes or other evidence of indebtedness (hereinafter called the “Securities”)
of the Issuer of the series hereinafter specified, which series is initially limited in aggregate principal amount to [$] ,
all of such Securities issued and to be issued under an Indenture dated as of ,
(the “Indenture”) between the Issuer and as
trustee (the “Trustee”). Capitalized terms herein are used as defined in the Indenture unless otherwise indicated.
The terms of the Securities include those stated in the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as in effect on the date of the Indenture. The Securities are subject to all such terms, and Holders are
referred to the Indenture and the Trust Indenture Act for a statement of all such terms. To the extent permitted by applicable
law, in the event of any inconsistency between the terms of this Security and the terms of the Indenture, the terms of the Indenture
shall control.
This Security is one
of a series of Securities designated pursuant to the Indenture [and an [Supplemental Indenture] dated
, , issued pursuant to Section 2.01 and Section 2.03 thereof
(the “Supplement”)] as . The Securities are
general unsecured obligations of the Issuer. The Issuer may, subject to the provisions of the Indenture and applicable law, issue
additional Securities of any series under the Indenture.
The Issuer shall pay
interest on the Securities (except defaulted interest) to the persons who are the registered Holders at the close of business on
the Interest Record Date immediately preceding the Interest Payment Date notwithstanding any transfer or exchange of such Security
subsequent to such Interest Record Date and prior to such Interest Payment Date. Holders must surrender Securities to the Trustee
to collect principal payments. The Issuer shall pay Principal and interest in money of [the United States] that at the time
of payment is legal tender for payment of public and private debts. [However, the payments of interest, and any portion of the
Principal (other than interest payable at maturity or on any redemption or repayment date or the final payment of Principal) shall
be made by the Paying Agent, upon receipt from the Issuer of immediately available funds by [a./p.m.],
New York City time (or such other time as may be agreed to between the Issuer and the Paying Agent or the Issuer), directly to
a Holder (by Federal funds wire transfer or otherwise) if the Holder has delivered written instructions to the Trustee 15 days
prior to such payment date requesting that such payment will be so made and designating the bank account to which such payments
shall be so made and in the case of payments of Principal surrenders the same to the Trustee in exchange for a Security or Securities
aggregating the same principal amount as the unredeemed principal amount of the Securities surrendered.]
[The Securities of this
series may be redeemed at any time [on or after , ],
as a whole or in part, at the option of the Issuer, upon mailing notice of such redemption not less than 30 and not more than 60
days to the Holders of such Securities, at a redemption price equal to
.]
| 4. | Paying Agent and Security Registrar |
Initially, the Trustee
will act as Paying Agent and Security Registrar. The Issuer may change any Paying Agent or Security Registrar without notice to
the Holders.
| 5. | Denominations; Transfer; Exchange. |
The Securities are in registered
form, without coupons, in denominations of [$1,000] and multiples of [$1,000]. A Holder shall register the transfer
of or exchange Securities in accordance with the Indenture. The Issuer may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay certain transfer taxes or similar governmental charges payable in connection therewith
as permitted by the Indenture. [The Issuer need not register the transfer of or exchange (a) any Securities for a period of
fifteen (15) days preceding the first mailing of notice that such Securities are to be redeemed, or (b) any Securities selected,
called or being called 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 so redeemed.]
The registered Holder of
a Security shall be treated as the owner of it for all purposes.
If funds for the payment
of principal or interest remain unclaimed for two years, the Trustee and the Paying Agent will repay the funds to the Issuer. After
that, all liability of the Trustee and such Paying Agent with respect to such funds shall cease.
The Indenture [as amended
by the Supplement] contains provisions for defeasance at any time of (a) the entire indebtedness of the Issuer on this Security
and (b) certain restrictive covenants and the related Events of Default, upon compliance by the Issuer with certain conditions
set forth therein, which provisions [apply] to this Security.
| 9. | Amendment; Supplement; Waiver. |
Subject to certain exceptions,
the Securities of this series, [the Supplement] and the provisions of the Indenture relating to the Securities of this series
may be amended or supplemented with the written consent of the Holders of at least a majority in aggregate principal amount of
the Securities of this series then outstanding, and any existing Default or Event of Default, other than the non-payment of the
principal amount of or interest on the Securities of this series, or compliance with certain provisions may be waived with the
consent of the Holders of a majority in aggregate principal amount of all the Securities of this series then outstanding. Without
notice to or consent of any Holder, the parties thereto may amend or supplement the Indenture and the Securities to, among other
things, cure any ambiguity, defect or inconsistency, provide for uncertificated Securities in addition to or in place of certificated
Securities, or make any other change that does not adversely affect the rights of any Holder of a Security.
| 10. | Defaults and Remedies. |
If an Event of Default
(other than certain bankruptcy Events of Default with respect to the Issuer) occurs and is continuing, the Trustee or the Holders
of at least 25% in aggregate principal amount of Securities of this series then outstanding (voting as a separate class) by notice
in writing to the Issuer (and also to the Trustee if such notice is given by the Holders) may declare [the entire principal] of
the
Securities of this series and the interest
accrued thereon, if any, to be due and payable immediately in the manner and with the effect provided in the Indenture. If a bankruptcy
Event of Default with respect to the Issuer occurs and is continuing, then [the entire principal] of the Securities then
outstanding and interest accrued thereon, if any, shall become due and payable immediately in the manner and with the effect provided
in the Indenture. Holders of Securities may not enforce the Indenture or the Securities except as provided in the Indenture. The
Trustee is not obligated to enforce the Indenture or the Securities unless it has received indemnity satisfactory to it. The Indenture
permits, subject to certain limitations therein provided, Holders of a majority in aggregate principal amount of the Securities
then outstanding to direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of Securities
notice of certain continuing Defaults or Events of Default if it determines that withholding notice is in their interest.
| 11. | Trustee Dealings with Issuer. |
The Trustee under the Indenture,
in its individual or any other capacity, may become the owner or pledgee of Securities and may otherwise deal with the Issuer as
if it were not the Trustee.
| 12. | No Recourse Against Others. |
No stockholder, director,
officer, employee or incorporator, past, present or future as such, of the Issuer or any predecessor or successor corporation thereof
shall have any liability for any obligation under the Securities or the Indenture or for any claim based on, in respect of or by
reason of, such obligations or their creation. Each Holder of a Security by accepting a Security waives and releases all such liability.
The waiver and release are part of the consideration for the issuance of the Securities.
This Security shall not
be valid until the Trustee manually signs the certificate of authentication on this Security.
| 14. | Abbreviations and Defined Terms. |
Customary abbreviations
may be used in the name of a Holder of a Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by
the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).
Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification Procedures, the Issuer has caused CUSIP numbers to be printed on
the Securities as a convenience to the Holders of the Securities. No representation is made as to the accuracy of such numbers
as printed on the Securities and reliance may be placed only on the other identification numbers printed hereon.
The laws of the State of
New York shall govern the Indenture and this Security thereof, and for all purposes this Security shall be governed by and construed
in accordance with the laws of such State without regard to any principle of conflict of laws that would require or permit the
application of the laws of any other jurisdiction, except as may otherwise be required by mandatory provisions of law.
ASSIGNMENT FORM
I or we assign and transfer this Security to
(Print or type name, address and zip code of
assignee or transferee)
(Insert Social Security or other identifying
number of assignee or transferee)
and irrevocably appoint agent
to transfer this Security on
the books of the Issuer. The agent may substitute another
to act for
him.
Dated: |
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Signed: |
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(Signed exactly as name appears on
the other side of this Security) |
Participant in a recognized Signature Guarantee Medallion
Program (or other signature guarantor program reasonably acceptable to the Trustee)
Exhibit 4.4
Form of Subordinated Note
(FACE OF SECURITY)
[Each Global Security shall bear substantially
the following legend:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR
IN PART FOR SECURITIES IN DEFINITIVE REGISTERED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS SECURITY IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[If the Security has original issue discount
for U.S. federal income tax purposes, insert tax legend:
[FOR PURPOSES OF SECTIONS 1272 , 1273, and
1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (“THE CODE”), THIS SECURITY IS BEING ISSUED WITH ORIGINAL ISSUE
DISCOUNT. THE AMOUNT OF ORIGINAL ISSUE DISCOUNT (AS DEFINED IN SECTION 1273(a)(1) OF THE CODE AND TREASURY REGULATION SECTION 1.1273-1(a))
WITH RESPECT TO THIS SECURITY IS , THE ISSUE DATE (AS DEFINED IN SECTION 1275(a)(2) OF THE CODE AND TREASURY REGULATION SECTION
1.1273-2(a)(2)) OF THIS SECURITY IS , THE ISSUE PRICE (AS DEFINED IN SECTION 1273(b) OF THE CODE AND TREASURY REGULATION SECTION
1.1273-2(a)) OF THIS SECURITY IS , AND THE YIELD TO MATURITY (AS DEFINED IN TREASURY REGULATION SECTION 1.1272-1(b)) OF THIS SECURITY
IS .] ]
BANKWELL FINANCIAL GROUP, INC.
[ Title of Security ]
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No. [ ] |
CUSIP No.: [ ] |
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[Common Code][ISIN]: [ ] |
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[$ ] |
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BANKWELL FINANCIAL GROUP,
INC., a Connecticut corporation (“Issuer”, which term includes any successor corporation), for value received promises
to pay to [If the Security is a Global Security—CEDE & CO.][If the Security is not a Global Security—
] or registered assigns, the principal sum of on , (the “Maturity Date”) [If the Security is to bear interest prior
to maturity, insert—, and to pay interest thereon from or from the most recent interest payment date to which interest has
been paid or duly provided for, [semiannually in arrears on and in each year], commencing , (each, an “Interest Payment
Date”) at the rate of [ % per annum], until the principal hereof is paid or made available for payment [If applicable
insert—, and (to the extent that the payment of such interest shall be legally enforceable) at the rate of % per annum
on any overdue principal and on any overdue installment of interest]. The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Indenture (as defined below), be paid to the Holder in whose name this
Security (or one or more predecessor Securities) is registered at the close of business on the record date for such interest, which
shall be the or (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date (each, an “Interest
Record Date”). Interest will be computed on the basis of [a 360-day year of twelve 30-day months].]
[If the Security is not to bear interest
prior to maturity, insert—The principal of this Security shall not bear interest except in the case of a default in payment
of principal upon acceleration, upon redemption or at maturity and, in each such case, the overdue principal of this Security shall
bear interest at the rate of % per annum (to the extent that the payment of such interest shall be legally enforceable), which
shall accrue from the date of such default in payment to the date payment of such principal has been made or duly provided for.
Interest on any overdue principal shall be payable on demand.]
Reference is made to the further provisions
set forth on the reverse of this Security contained herein, which will for all purposes have the same effect as if set forth at
this place.
IN WITNESS WHEREOF, the
Issuer has caused this Security to be signed manually or by facsimile by its duly authorized officer under its corporate seal.
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BANKWELL FINANCIAL GROUP, INC. |
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By: |
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Name: |
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Title: |
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This is one of the Securities of the series
designated herein and referred to in the within-mentioned Indenture.
Dated: [ ]
(REVERSE OF SECURITY)
BANKWELL FINANCIAL GROUP, INC.
[ Title of Security ]
This Security is one
of a duly authorized issue of debentures, notes or other evidence of indebtedness (hereinafter called the “Securities”)
of the Issuer of the series hereinafter specified, which series is initially limited in aggregate principal amount to [$]
, all of such Securities issued and to be issued under an Indenture dated as of , (the “Indenture”) between the Issuer
and as trustee (the “Trustee”). Capitalized terms herein are used as defined in the Indenture unless otherwise indicated.
The terms of the Securities include those stated in the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as in effect on the date of the Indenture. The Securities are subject to all such terms, and Holders are
referred to the Indenture and the Trust Indenture Act for a statement of all such terms. To the extent permitted by applicable
law, in the event of any inconsistency between the terms of this Security and the terms of the Indenture, the terms of the Indenture
shall control.
This Security is one
of a series of Securities designated pursuant to the Indenture [and an [Supplemental Indenture] dated , , issued pursuant
to Section 2.01 and Section 2.03 thereof (the “Supplement”)] as . The Securities are general unsecured obligations
of the Issuer. The Issuer may, subject to the provisions of the Indenture and applicable law, issue additional Securities of any
series under the Indenture.
The Issuer shall pay
interest on the Securities (except defaulted interest) to the persons who are the registered Holders at the close of business on
the Interest Record Date immediately preceding the Interest Payment Date notwithstanding any transfer or exchange of such Security
subsequent to such Interest Record Date and prior to such Interest Payment Date. Holders must surrender Securities to the Trustee
to collect principal payments. The Issuer shall pay Principal and interest in money of [the United States] that at the time
of payment is legal tender for payment of public and private debts. [However, the payments of interest, and any portion of the
Principal (other than interest payable at maturity or on any redemption or repayment date or the final payment of Principal) shall
be made by the Paying Agent, upon receipt from the Issuer of immediately available funds by [a./p.m.], New York City time
(or such other time as may be agreed to between the Issuer and the Paying Agent or the Issuer), directly to a Holder (by Federal
funds wire transfer or otherwise) if the Holder has delivered written instructions to the Trustee 15 days prior to such payment
date requesting that such payment will be so made and designating the bank account to which such payments shall be so made and
in the case of payments of Principal surrenders the same to the Trustee in exchange for a Security or Securities aggregating the
same principal amount as the unredeemed principal amount of the Securities surrendered.]
[The Securities of this series may be redeemed
at any time [on or after , ], as a whole or in part, at the option of the Issuer, upon mailing notice of such redemption not less
than 30 and not more than 60 days to the Holders of such Securities, at a redemption price equal to .]
| 4. | Paying Agent and Security Registrar |
Initially, the Trustee
will act as Paying Agent and Security Registrar. The Issuer may change any Paying Agent or Security Registrar without notice to
the Holders.
| 5. | Denominations; Transfer; Exchange. |
The Securities are in registered
form, without coupons, in denominations of [$1,000] and multiples of [$1,000]. A Holder shall register the transfer
of or exchange Securities in accordance with the Indenture. The Issuer may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay certain transfer taxes or similar governmental charges payable in connection therewith
as permitted by the Indenture. [The Issuer need not register the transfer of or exchange (a) any Securities for a period of
fifteen (15) days preceding the first mailing of notice that such Securities are to be redeemed, or (b) any Securities selected,
called or being called 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 so redeemed.]
The registered Holder of a Security shall be treated as
the owner of it for all purposes.
If funds for the payment
of principal or interest remain unclaimed for two years, the Trustee and the Paying Agent will repay the funds to the Issuer. After
that, all liability of the Trustee and such Paying Agent with respect to such funds shall cease.
The Indenture [as amended
by the Supplement] contains provisions for defeasance at any time of (a) the entire indebtedness of the Issuer on this Security
and (b) certain restrictive covenants and the related Events of Default, upon compliance by the Issuer with certain conditions
set forth therein, which provisions [apply] to this Security.
| 9. | Amendment; Supplement; Waiver. |
Subject to certain
exceptions, the Securities of this series, [the Supplement] and the provisions of the Indenture relating to the Securities of this
series may be amended or supplemented with the written consent of the Holders of at least a majority in aggregate principal amount
of the Securities of this series then outstanding, and any existing Default or Event of Default, other than the non-payment of
the principal amount of or interest on the Securities of this series, or compliance with certain provisions may be waived with
the consent of the Holders of a majority in aggregate principal amount of all the Securities of this series, then outstanding.
Without notice to or consent of any Holder, the parties thereto may amend or supplement the Indenture and the Securities to, among
other things, cure any ambiguity, defect or inconsistency, provide for uncertificated Securities in addition to or in place of
certificated Securities, or make any other change that does not adversely affect the rights of any Holder of a Security.
| 10. | Defaults and Remedies. |
If an Event of Default
(other than certain bankruptcy Events of Default with respect to the Issuer) occurs and is continuing, the Trustee or the Holders
of at least 25% in aggregate principal amount of
Securities of this series then outstanding
(voting as a separate class) by notice in writing to the Issuer (and also to the Trustee if such notice is given by the Holders)
may declare [the entire principal] of the Securities of this series and the interest accrued thereon, if any, to be due
and payable immediately in the manner and with the effect provided in the Indenture. If a bankruptcy Event of Default with respect
to the Issuer occurs and is continuing, then [the entire principal] of the Securities then outstanding and interest accrued
thereon, if any, shall become due and payable immediately in the manner and with the effect provided in the Indenture. Holders
of Securities may not enforce the Indenture or the Securities except as provided in the Indenture. The Trustee is not obligated
to enforce the Indenture or the Securities unless it has received indemnity satisfactory to it. The Indenture permits, subject
to certain limitations therein provided, Holders of a majority in aggregate principal amount of the Securities then outstanding
to direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of Securities notice of certain
continuing Defaults or Events of Default if it determines that withholding notice is in their interest.
Reference is made to
the Indenture, including, without limitation, provisions subordinating the payment of principal of and premium, if any, and interest
on the Securities to the prior payment in full of all Senior Indebtedness as defined in the Indenture. Such further provisions
shall for all purposes have the same effect as though fully set forth at this place.
| 12. | Trustee Dealings with Issuer. |
The Trustee under the
Indenture, in its individual or any other capacity, may become the owner or pledgee of Securities and may otherwise deal with the
Issuer as if it were not the Trustee.
| 13. | No Recourse Against Others. |
No stockholder, director,
officer, employee or incorporator, past, present or future as such, of the Issuer or any predecessor or successor corporation thereof
shall have any liability for any obligation under the Securities or the Indenture or for any claim based on, in respect of or by
reason of, such obligations or their creation. Each Holder of a Security by accepting a Security waives and releases all such liability.
The waiver and release are part of the consideration for the issuance of the Securities.
This Security shall
not be valid until the Trustee manually signs the certificate of authentication on this Security.
| 15. | Abbreviations and Defined Terms. |
Customary abbreviations
may be used in the name of a Holder of a Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by
the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).
Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Issuer has caused CUSIP numbers to be printed on the Securities
as a convenience to the Holders of the Securities. No representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers printed hereon.
The laws of the State
of New York shall govern the Indenture and this Security thereof, and for all purposes this Security shall be governed by and construed
in accordance with the laws of such State without regard to any principle of conflict of laws that would require or permit the
application of the laws of any other jurisdiction, except as may otherwise be required by mandatory provisions of law.
ASSIGNMENT FORM
I or we assign and transfer this Security to
(Print or type name, address and zip code of
assignee or transferee)
(Insert Social Security or other identifying
number of assignee or transferee)
and irrevocably appoint agent to transfer this Security
on
the books of the Issuer. The agent may substitute another
to act for
him.
Dated: |
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Signed: |
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(Signed exactly as name appears on the other side of this Security) |
Participant in a recognized Signature Guarantee Medallion
Program (or other signature guarantor program reasonably acceptable to the Trustee)
Exhibit 5
July 29,
2015
Bankwell Financial Group, Inc.
220 Elm Street
New Canaan, Connecticut 06840
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
This opinion is furnished to you
in connection with a Registration Statement on Form S-3 (the “Registration Statement”) filed by Bankwell Financial
Group, Inc., a Connecticut corporation (the “Company”), with the Securities and Exchange Commission (the “Commission”)
under the Securities Act of 1933, as amended (the “Securities Act”), for the registration of the following securities
of the Company (the “Securities”):
(i) | common stock, no par value per share (the “Common
Stock”); |
(ii) | preferred stock, no par value per share (the “Preferred
Stock”); |
(iii) | senior debt securities (the “Senior Debt Securities”); |
(iv) | subordinated debt securities (the “Subordinated
Debt Securities” and, together with the Senior Debt Securities, the “Debt Securities”); |
(v) | depositary shares representing a fractional interest in a share of Preferred Stock (“Depositary
Shares”); |
(vi) | contracts obligating the Company or a holder to purchase Common Stock, Preferred Stock or Depositary
Shares at a future date or dates (“Stock Purchase Contracts”); |
(vii) | stock purchase units, consisting of one or more Stock Purchase Contracts and beneficial interests
in Debt Securities or any other securities (“Stock Purchase Units”); |
Bankwell Financial Group, Inc.
July 29, 2015
Page | 2
(viii) | warrants to purchase Common Stock, Preferred Stock, Depositary
Shares or Debt Securities (the “Warrants”); and |
(ix) | units, consisting of one or more of the other Securities
in any combination (the “Units”), |
all of which may be issued from time
to time on a delayed or continuous basis pursuant to Rule 415 under the Securities Act at an indeterminate aggregate initial offering
price up to a total maximum aggregate offering price of $50,000,000, as set forth in the Registration Statement, the prospectus
contained therein (the “Prospectus”) and any amendments or supplements thereto.
We are acting as counsel for the
Company in connection with the filing of the Registration Statement. The preferences, limitations and relative rights of shares
of any series of Preferred Stock will be set forth in a Certificate of Amendment to the Company’s Certificate of Incorporation
(a “Certificate of Amendment”) with respect thereto. The Senior Debt Securities may be issued pursuant to a senior
indenture (the “Senior Indenture”) between the Company and a trustee to be named in such indenture and duly qualified
under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and the Subordinated Debt Securities
may be issued pursuant to a subordinated indenture (together with the Senior Indenture, the “Indentures”) between the
Company and a trustee to be named in such indenture and duly qualified under the Trust Indenture Act. The shares of Preferred Stock
represented by Depositary Shares will be deposited pursuant to a Depositary Agreement (the “Depositary Agreement”)
between the Company and a bank or trust company as depositary. The Stock Purchase Contracts may be issued pursuant to a Stock Purchase
Contract Agreement (the “Stock Purchase Contract Agreement”) between the Company and a bank or trust company as stock
purchase contract agent. The Stock Purchase Units may be issued pursuant to a Stock Purchase Unit Agreement (the “Stock Purchase
Unit Agreement”) between the Company and a bank or trust company as unit agent. Warrants may be issued pursuant to a warrant
agreement (the “Warrant Agreement”) between the Company and a bank or trust company as warrant agent. Units may be
issued pursuant to a Unit Agreement (the “Unit Agreement”) between the Company and a bank or trust company as unit
agent.
We have examined and relied upon
signed copies of the Registration Statement to be filed with the Commission, including the exhibits thereto. We have also examined
and relied upon the corporate minute books of the Company as provided to us by the Company and the Certificate of Incorporation
and By-laws of the Company, each as restated and/or amended.
In our examination of the documents
described above, we have assumed the genuineness of all signatures, the legal capacity of all individual signatories, the authenticity
of all documents
Bankwell Financial Group, Inc.
July 29, 2015
Page | 3
submitted to us as originals, the
conformity to original documents of all documents submitted to us as copies, the authenticity of such original documents and the
completeness and accuracy of the corporate minute books of the Company provided to us by the Company.
We have relied as to certain matters
on information obtained from public officials and officers of the Company, and we have assumed that (i) one or more Prospectus
supplements will be prepared and filed with the Commission describing the Securities offered thereby, (ii) all Securities will
be issued and sold in compliance with applicable federal and state securities laws and in the manner stated in the Registration
Statement, the Prospectus and the applicable Prospectus supplements, (iii) the applicable Indenture will be duly authorized, executed
and delivered by the trustee named therein, (iv) the applicable Indenture will be duly qualified under the Trust Indenture Act
and the applicable trustee will be duly eligible to serve as trustee, (v) the Debt Securities will be duly authenticated by the
trustee named in the applicable Indenture, (vi) the Depositary Agreement, Stock Purchase Contract Agreement, Stock Purchase Unit
Agreement, Warrant Agreement and Unit Agreement will be duly authorized, executed and delivered by all parties thereto other than
the Company, (vii) any definitive purchase, underwriting or similar agreement with respect to any Securities offered will be duly
authorized, executed and delivered by all parties thereto other than the Company, (viii) any Securities issuable upon conversion,
exchange or exercise of any Security being offered will be duly authorized, created and, if appropriate, reserved for issuance
upon such conversion, exchange or exercise, (ix) with respect to shares of Common Stock or Preferred Stock offered, there will
be sufficient shares of Common Stock or Preferred Stock authorized under the Company’s Certificate of Incorporation, as restated
and/or amended, and not otherwise reserved for issuance and (x) the Company will be validly existing as a corporation and in good
standing under the laws of the State of Connecticut.
We are expressing no opinion herein
as to the application of any federal or state law or regulation to the power, authority or competence of any party to any agreement
with respect to any of the Securities other than the Company. We have assumed that such agreements are, or will be, the valid and
binding obligations of each party thereto other than the Company, and enforceable against each such other party in accordance with
their respective terms.
We have assumed for purposes of our
opinions below that no authorization, approval, consent or other action by, and no notice to or filing with, any governmental authority
or regulatory body or any other third party is required for the due execution, delivery or performance by the Company or, if any
such authorization, approval, consent, action, notice or filing is required, it will have been duly obtained, taken, given or made
and will be in full force and effect. We have also assumed that the execution and delivery by the Company of the Indentures, the
Depositary Agreement, the Stock Purchase Contract Agreement, the Stock Purchase Unit Agreement, the
Bankwell Financial Group, Inc.
July 29, 2015
Page | 4
Warrant Agreement, the Unit Agreement
and the Securities and the performance by the Company of its obligations thereunder do not and will not violate, conflict with
or constitute a default under (i) any agreement or instrument to which the Company or any of its properties is subject, (ii) any
law, rule or regulation to which the Company or any of its properties is subject or (iii) any judicial or regulatory order or decree
of any governmental authority.
We have also assumed that there will
not have occurred, prior to the date of issuance of the Securities, any change in law affecting the validity or enforceability
of such Securities and that at the time of the issuance and sale of the Securities, the Board of Directors of the Company (or any
committee thereof acting pursuant to authority properly delegated to such committee by the Board of Directors) shall not have taken
any action to rescind or otherwise reduce its prior authorization of the issuance of the Securities.
Our opinions below are qualified
to the extent that they may be subject to or affected by (i) applicable bankruptcy, insolvency, reorganization, moratorium, usury,
fraudulent conveyance or similar laws relating to or affecting the rights or remedies of creditors generally, (ii) duties and standards
imposed on creditors and parties to contracts, including, without limitation, requirements of materiality, good faith, reasonableness
and fair dealing and (iii) general equitable principles. Furthermore, we express no opinion as to the availability of any equitable
or specific remedy upon any breach of any of the agreements as to which we are opining herein, or any of the agreements, documents
or obligations referred to therein, or to the successful assertion of any equitable defenses, inasmuch as the availability of such
remedies or the success of any equitable defenses may be subject to the discretion of a court. We also express no opinion herein
as to the laws of any state or jurisdiction other than the state laws of the State of Connecticut and the federal laws of the United
States of America. We express no opinion herein with respect to compliance by the Company with securities or “blue sky”
laws of any state or other jurisdiction of the United States or of any foreign jurisdiction. In addition, we express no opinion
and make no statement herein with respect to the antifraud laws of any jurisdiction.
We also express no opinion herein
as to any provision of any agreement (i) that may be deemed to or construed to waive any right of the Company, (ii) to the effect
that rights and remedies are not exclusive, that every right or remedy is cumulative and may be exercised in addition to or with
any other right or remedy and does not preclude recourse to one or more other rights or remedies, (iii) relating to the effect
of invalidity or unenforceability of any provision of any agreement on the validity or enforceability of any other provision thereof,
(iv) that is in violation of public policy, (v) relating to indemnification and contribution with respect to securities law matters,
(vi) which provides that the terms of any agreement may not be waived or modified except in writing, (vii) purporting to indemnify
any person against his, her or its own negligence
Bankwell Financial Group, Inc.
July 29, 2015
Page | 5
or intentional misconduct, (viii)
requiring the payment of penalties, consequential damages or liquidated damages or (ix) relating to choice of law or consent to
jurisdiction.
Based upon and subject to the foregoing,
we are of the opinion that:
1. With respect
to the Common Stock, when (i) specifically authorized for issuance by proper action of the Company’s Board of Directors or
an authorized committee thereof (the “Authorizing Resolutions”), (ii) the terms of the issuance and sale of the Common
Stock have been duly established in conformity with the Company’s Certificate of Incorporation and By-laws, each as restated
and/or amended, (iii) the shares of Common Stock have been issued and sold as contemplated by the Registration Statement, the Prospectus
and the applicable supplements to such Prospectus and (iv) the Company has received the consideration provided for in the Authorizing
Resolutions, the Common Stock will be validly issued, fully paid and nonassessable.
2. With respect
to shares of any series of the Preferred Stock, when (i) the Authorizing Resolutions have specifically authorized the issuance
and terms of the shares of the series, the terms of the offering thereof and related matters, including resolutions adopting a
Certificate of Amendment that establishes and designates the series and fixes and determines the preferences, limitations and relative
rights thereof, (ii) a Certificate of Amendment with respect to the series has been filed with the Secretary of State of the State
of Connecticut, (iii) the terms of the issuance and sale of the series of Preferred Stock have been duly established in conformity
with the Company’s Certificate of Incorporation and By-laws, each as restated and/or amended, (iv) the shares of the series
of Preferred Stock have been duly issued and sold as contemplated by the Registration Statement, the Prospectus and the applicable
supplements to such Prospectus and (v) the Company has received the consideration provided for in the Authorizing Resolutions,
the shares of such series of Preferred Stock will be validly issued, fully paid and nonassessable.
3. With respect
to the Debt Securities, when (i) specifically authorized for issuance by the Authorizing Resolutions, (ii) the applicable Indenture
has been duly authorized, executed and delivered, (iii) the terms of the Debt Securities and of their issuance and sale have been
duly established in conformity with the applicable Indenture and the Authorizing Resolutions, (iv) such Debt Securities have been
duly executed and authenticated in accordance with the applicable Indenture and issued and sold as contemplated by the Registration
Statement, the Prospectus and the applicable supplements to such Prospectus and (v) the Company has received the consideration
provided for in the Authorizing Resolutions, such Debt Securities will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms.
Bankwell Financial Group, Inc.
July 29, 2015
Page | 6
4. With respect
to the Depositary Shares, when (i) the Authorizing Resolutions have specifically authorized the issuance and terms of the Depositary
Shares, the terms of the offering thereof and related matters, including the adoption of a Certificate of Amendment relating to
the Preferred Stock underlying the Depositary Shares and the filing of such Certificate of Amendment with the Secretary of State
of the State of Connecticut, (ii) the applicable Depositary Agreement relating to the Depositary Shares has been duly authorized,
executed and delivered and the depositary appointed by the Company, (iii) the terms of the issuance and sale of the Depositary
Shares have been duly established in conformity with the Company’s Certificate of Incorporation and By-laws, each as restated
and/or amended, (iv) the Depositary Shares have been issued and sold as contemplated by the Registration Statement, the Prospectus
and the applicable supplements to such Prospectus, (v) the shares of Preferred Stock underlying the Depositary Shares have been
deposited with a bank or trust company (which meets the requirements for the depositary set forth in the Registration Statement)
and (vi) the Company has received the consideration provided for in the Authorizing Resolutions, such Depositary Shares will be
legally issued.
5. With respect
to the Stock Purchase Contracts, when (i) specifically authorized for issuance by the Authorizing Resolutions, (ii) the applicable
Stock Purchase Contract Agreement has been duly authorized, executed and delivered, (iii) the terms of the Stock Purchase Contracts
and of their issuance and sale have been duly established in conformity with the applicable Stock Purchase Contract Agreement and
the Authorizing Resolutions, (iv) the Stock Purchase Contracts have been duly executed and delivered in accordance with the Stock
Purchase Contract Agreement and issued and sold as contemplated by the Registration Statement, the Prospectus and the applicable
supplements to such Prospectus and (v) the Company has received the consideration provided for in the Authorizing Resolutions,
such Stock Purchase Contracts will constitute valid and binding obligations of the Company, enforceable against the Company in
accordance with their terms.
6. With respect
to the Stock Purchase Units, when (i) specifically authorized for issuance by the Authorizing Resolutions, (ii) the applicable
Stock Purchase Unit Agreement has been duly authorized, executed and delivered, (iii) the terms of the Stock Purchase Units and
of their issuance and sale have been duly established in conformity with the applicable Stock Purchase Unit Agreement and the Authorizing
Resolutions, (iv) the Stock Purchase Units have been duly executed and delivered in accordance with the Stock Purchase Unit Agreement
and issued and sold as contemplated by the Registration Statement, the Prospectus and the applicable supplements to such Prospectus
and (v) the Company has received the consideration provided for in the Authorizing Resolutions, such Stock Purchase Units will
constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
Bankwell Financial Group, Inc.
July 29, 2015
Page | 7
7. With respect
to the Warrants, when (i) specifically authorized for issuance by the Authorizing Resolutions, (ii) the applicable Warrant Agreement
relating to the Warrants has been duly authorized, executed and delivered, (iii) the terms of the Warrants and of their issuance
and sale have been duly established in conformity with the applicable Warrant Agreement and the Authorizing Resolutions, (iv) the
Warrants have been duly executed and countersigned in accordance with the applicable Warrant Agreement and issued and sold as contemplated
by the Registration Statement, the Prospectus and the applicable supplements to such Prospectus and (v) the Company has received
the consideration provided for in the Authorizing Resolutions, such Warrants will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms.
8. With respect
to the Units, when (i) specifically authorized for issuance by the Authorizing Resolutions, (ii) the applicable Unit Agreement
has been duly authorized, executed and delivered, (iii) the terms of the Units and of their issuance and sale have been duly established
in conformity with the applicable Unit Agreement and the Authorizing Resolutions, (iv) the Units have been duly executed and delivered
in accordance with the Unit Agreement and issued and sold as contemplated by the Registration Statement, the Prospectus and the
applicable supplements to such Prospectus and (v) the Company has received the consideration provided for in the Authorizing Resolutions,
such Units will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their
terms.
Please note that we are opining only
as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters. This opinion is based
upon currently existing statutes, rules, regulations and judicial decisions, and we disclaim any obligation to advise you of any
change in any of these sources of law or subsequent legal or factual developments which might affect any matters or opinions set
forth herein.
We hereby consent to the filing of
this opinion with the Commission as an exhibit to the Registration Statement in accordance with the requirements of Item 601(b)(5)
of Regulation S-K under the Securities Act and to the use of our name therein and in the related Prospectus and any Prospectus
supplement under the caption “Legal Matters.” In giving such consent, we do not hereby admit that we are in the category
of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.
Very truly yours, |
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/s/ Hinckley, Allen & Snyder LLP |
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Exhibit 12.1
Calculation of Ratios of Earnings
to Fixed Charges
Our historical ratios of earnings
to fixed charges for the periods indicated are set forth below.
The ratio of earnings to fixed charges
is computed by dividing (i) income from continuing operations before income taxes and fixed charges by (ii) total fixed
charges.
For purposes of computing these ratios (i) earnings consist of income before income taxes plus fixed
charges, (ii) fixed charges, excluding interest on deposits, include interest expense (other than on deposits), preferred
stock dividends and the estimated portion of rental expense attributable to interest, and (iii) fixed charges, including interest
on deposits, include all interest expense, preferred stock dividends and the estimated portion of rental expense attributable to
interest.
| |
Six
Months | | |
Years
Ended December 31, | |
(Dollars
In thousands) | |
Ended June
30, 2015 | | |
2014 | | |
2013 | | |
2012 | | |
2011 | | |
2010 | |
Fixed Charges | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Interest expense, excluding deposits | |
$ | 757 | | |
$ | 634 | | |
$ | 532 | | |
$ | 825 | | |
$ | 847 | | |
$ | 835 | |
Estimate of interest in rental expense | |
| 6 | | |
| 9 | | |
| 11 | | |
| 17 | | |
| 22 | | |
| 26 | |
Preferred stock dividends (1) | |
| 84 | | |
| 162 | | |
| 158 | | |
| 203 | | |
| 299 | | |
| 371 | |
Total Fixed Charges | |
$ | 847 | | |
$ | 805 | | |
$ | 701 | | |
$ | 1,045 | | |
$ | 1,168 | | |
$ | 1,232 | |
Earnings | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Income before provision for taxes | |
$ | 6,349 | | |
$ | 6,737 | | |
$ | 7,345 | | |
$ | 1,871 | | |
$ | 3,201 | | |
$ | 721 | |
Add: fixed charges | |
| 847 | | |
| 805 | | |
| 701 | | |
| 1,045 | | |
| 1,168 | | |
| 1,232 | |
Total earnings | |
$ | 7,196 | | |
$ | 7,542 | | |
$ | 8,046 | | |
$ | 2,916 | | |
$ | 4,369 | | |
$ | 1,953 | |
Ratio of earnings to fixed charges, excluding interest on deposits | |
| 8.50 | | |
| 9.37 | | |
| 11.48 | | |
| 2.79 | | |
| 3.74 | | |
| 1.59 | |
(1) Preferred stock dividends used in the ratio consist of the amount
of pre-tax earnings required to pay the dividends on outstanding preferred stock.
| |
Six Months | | |
Years Ended
December 31, | |
(Dollars
In thousands) | |
Ended June
30, 2015 | | |
2014 | | |
2013 | | |
2012 | | |
2011 | | |
2010 | |
Fixed Charges | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Interest expense, including deposits | |
$ | 3,026 | | |
$ | 3,929 | | |
$ | 2,765 | | |
$ | 3,192 | | |
$ | 2,870 | | |
$ | 3,209 | |
Estimate of interest in rental expense | |
| 6 | | |
| 9 | | |
| 11 | | |
| 17 | | |
| 22 | | |
| 26 | |
Preferred stock dividends (1) | |
| 84 | | |
| 162 | | |
| 158 | | |
| 203 | | |
| 299 | | |
| 371 | |
Total Fixed Charges | |
$ | 3,116 | | |
$ | 4,100 | | |
$ | 2,934 | | |
$ | 3,412 | | |
$ | 3,191 | | |
$ | 3,606 | |
Earnings | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Income before provision for taxes | |
$ | 6,349 | | |
$ | 6,737 | | |
$ | 7,345 | | |
$ | 1,871 | | |
$ | 3,201 | | |
$ | 721 | |
Add: fixed charges | |
| 3,116 | | |
| 4,100 | | |
| 2,934 | | |
| 3,412 | | |
| 3,191 | | |
| 3,606 | |
Total earnings | |
$ | 9,465 | | |
$ | 10,837 | | |
$ | 10,279 | | |
$ | 5,283 | | |
$ | 6,392 | | |
$ | 4,327 | |
Ratio of earnings to fixed charges, including interest on deposits | |
| 3.04 | | |
| 2.64 | | |
| 3.50 | | |
| 1.55 | | |
| 2.00 | | |
| 1.20 | |
(1) Preferred stock dividends used in the ratio consist of the amount
of pre-tax earnings required to pay the dividends on outstanding preferred stock.
Exhibit 23.2
Consent
of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in this Registration
Statement on Form S-3 and related Prospectus of Bankwell Financial Group, Inc. of our report dated March 13, 2015 relating to the
consolidated financial statements appearing in the Annual Report on Form 10-K of Bankwell Financial Group, Inc.. for the year ended
December 31, 2014. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/ Whittlesey & Hadley, P.C.
Hartford, Connecticut
July 29, 2015
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