As filed with the Securities and Exchange Commission
on January 24, 2024
Registration No. 333-_______
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HANOVER
BANCORP, INC.
(Exact name of registrant as specified in its charter)
| New
York | |
81-3324480 |
| (State
or other jurisdiction | |
(I.R.S.
Employer |
| of
incorporation) | |
Identification
No.) |
80 East Jericho Turnpike
Mineola,
New York 11501
(516) 548-8500
(Address, including zip code, and telephone
number,
including area code, of registrant’s principal executive offices)
Michael
P. Puorro
Chairman and Chief Executive Officer
Hanover Bancorp, Inc.
80 East Jericho Turnpike
Mineola,
New York 11501
(516) 548-8500
(Name, address, including zip code, and telephone
number
including area code, of agent for service)
Please
send copies of all notices, orders and communications to:
Robert A. Schwartz, Esq.
Windels Marx Lane & Mittendorf, LLP
120 Albany Street Plaza, FL 6
New Brunswick, New Jersey 08901
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box: ¨
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415
under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check
the following box: þ
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act registration statement number of the earlier effective registration statement
for the same offering. ¨
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box
and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box: ¨
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following
box: ¨
Indicate by check mark whether
the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging
growth company. See the definitions of “large accelerated filer,” “accelerated filer”, “smaller reporting
company” and emerging growth company in Rule 12b-2 of the Exchange Act.
| Large
accelerated filer ¨ | |
Accelerated filer ¨ | |
Non-accelerated filer þ | |
Smaller Reporting Company
þ |
| | |
| |
| |
|
| Emerging
growth company þ | |
| |
| |
|
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act. ¨
The Registrant hereby amends this Registration Statement on such
date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically
states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities
Act or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant
to said Section 8(a), may determine.
The information in this prospectus
is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange
Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities
in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED JANUARY 24, 2024
PROSPECTUS
HANOVER BANCORP, INC.
$50,000,000
Common
Stock
Preferred Stock
Warrants
Debt Securities
Depositary Shares
Units
Hanover Bancorp, Inc.
may offer, issue and sell from time to time, together or separately, in one or more offerings, any combination of (i) our common
stock, (ii) our preferred stock, which we may issue in one or more series, (iii) warrants, (iv) senior or subordinated
debt securities, (v) depositary shares and (vi) units, up to a maximum aggregate offering price of $50,000,000. The debt securities
may consist of debentures, notes, or other types of debt. The debt securities, preferred stock and warrants may be convertible into, or
exercisable or exchangeable for, common or preferred stock or other securities of ours. The preferred stock may be represented by depositary
shares. The units may consist of any combination of the securities listed above.
We may offer and sell
these securities in amounts, at prices and on terms determined at the time of the offering. We will provide the specific terms of
these securities in supplements to this prospectus. You should read this prospectus and the accompanying prospectus supplement, as
well as the documents incorporated or deemed incorporated by reference in this prospectus, carefully before you make your investment
decision. Our common stock is quoted on the NASDAQ Global Select Market System under the symbol “HNVR.” On January 23,
2024, the last reported sale price of our common stock on the NASDAQ Global Select Market System was $17.45 per share. You are urged
to obtain current market quotations of the common stock. Each prospectus supplement will indicate if the securities offered thereby
will be listed on any securities exchange.
This prospectus may not be
used to sell securities unless accompanied by a prospectus supplement.
We may offer to sell these
securities on a continuous or delayed basis, through agents, dealers or underwriters, or directly to purchasers. The prospectus supplement
for each offering of securities will describe in detail the plan of distribution for that offering. If our agents or any dealers or underwriters
are involved in the sale of the securities, the applicable prospectus supplement will set forth the names of the agents, dealers or underwriters
and any applicable commissions or discounts. Our net proceeds from the sale of securities will also be set forth in the applicable prospectus
supplement. For general information about the distribution of securities offered, please see “PLAN OF DISTRIBUTION”
in this prospectus.
Investing in these securities
involves substantial risks. See “RISK FACTORS” on page 2 herein and in our most recent Annual Report on Form 10-K,
which is incorporated by reference herein, updated and supplemented by our periodic reports and other information filed by us with the
Securities and Exchange Commission and incorporated by reference herein. The prospectus supplement applicable to each type or series of
securities we offer may contain a discussion of additional risks applicable to an investment in us and the particular type of securities
we are offering under that prospectus supplement.
NEITHER THE SECURITIES
AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION OR REGULATORY BODY HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED
IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE SECURITIES ARE NOT
SAVINGS ACCOUNTS, DEPOSITS OR OBLIGATIONS OF ANY BANK AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL
AGENCY.
The date of this prospectus is [·], 2024.
TABLE OF CONTENTS
We have not authorized
any person to give any information or make any statement that differs from what is in this prospectus. If any person does make a statement
that differs from what is in this prospectus, you should not rely on it. This prospectus is not an offer to sell, nor is it a solicitation
of an offer to buy, these securities in any state in which the offer or sale is not permitted. The information in this prospectus is complete
and accurate as of its date, but the information may change after that date. You should not assume that the information in this prospectus
is accurate as of any date after its date.
PROSPECTUS
SUMMARY
This prospectus is a part
of a registration statement that we filed with the Securities and Exchange Commission, or 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.
The registration statement
containing this prospectus, including the exhibits to the registration statement, provides additional information about us and the securities
offered under this prospectus. You should read the registration statement and the accompanying exhibits for further information. The registration
statement, including the exhibits and the documents incorporated or deemed incorporated herein by reference, can be read and are available
to the public on the SEC’s website at http://www.sec.gov as described under the heading “Where You Can Find
More Information” on page 26.
Each time we sell securities
pursuant to this prospectus, we will provide a prospectus supplement containing specific information about the terms of a particular offering
by us. That prospectus supplement may include a discussion of any risk factors or other special considerations that apply to those securities.
The prospectus supplement may add, update or change information in this prospectus. If the information in the prospectus is inconsistent
with a prospectus supplement, you should rely on the information in that prospectus supplement. You should read both this prospectus and,
if applicable, any prospectus supplement. See “Where You Can Find More Information” on page 26 for more information.
We have not authorized any
dealer, salesman or other person to give any information or to make any representation other than those contained or incorporated by reference
in this prospectus or any prospectus supplement. You must not rely upon any information or representation not contained or incorporated
by reference in this prospectus or any prospectus supplement. This prospectus and any prospectus supplement do not constitute an offer
to sell or the solicitation of an offer to buy any securities other than the registered securities to which they relate, nor do this prospectus
and any prospectus supplement constitute an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any
person to whom it is unlawful to make such offer or solicitation in such jurisdiction. You should not assume that the information contained
in this prospectus or any prospectus supplement is accurate on any date subsequent to the date set forth on the front of such document
or that any information we have incorporated by reference is correct on any date subsequent to the date of the document incorporated by
reference, even though this prospectus and any prospectus supplement is delivered or securities are sold on a later date.
Unless this prospectus
indicates otherwise or the context otherwise requires, the terms “we,” “our,” “us,” “Hanover,”
“Hanover Bancorp” or the “Company” as used in this prospectus refer to Hanover Bancorp, Inc. and its subsidiaries,
including Hanover Community Bank, which we sometimes refer to as the “Bank,” except that such terms refer to only Hanover
Bancorp, Inc. and not its subsidiaries in the sections entitled “Description of Common Stock,” “Description of
Preferred Stock,” “Description of Warrants,” “Description of Debt Securities,” “Description of Depositary
Shares” and “Description of Units.”
Company Overview
Hanover Bancorp, Inc. (“Hanover”)
is a New York corporation which is the holding company for Hanover Community Bank (the “Bank”), a New York chartered
community commercial bank focusing on highly personalized and efficient services and products responsive to local needs. The Bank operates
as a locally headquartered, community-oriented bank serving customers throughout the New York metro area from offices in Nassau, Suffolk,
Queens, Kings (Brooklyn) and New York (Manhattan) Counties, New York, and Freehold, Monmouth County, New Jersey. We opened the
Bank’s Hauppauge Business Banking Center in Hauppauge, Suffolk County, New York in May 2023. As of September 30, 2023,
we had total assets of $2.15 billion, total loans of $1.87 billion, total deposits of $1.74 billion and total stockholders’
equity of $185.9 million.
The Bank was originally organized
in 2009, with a focus on serving the South Asian community in Nassau County. After incurring financial and regulatory setbacks, the Bank
was recapitalized in 2012 (the “2012 recapitalization”). Following the 2012 recapitalization, the Bank adopted a strategic
plan focused on providing differentiated consumer and commercial banking services to clients in the western Long Island markets and New
York City boroughs, particularly the Queens and Brooklyn markets. As a result, the Bank has grown its balance sheet significantly both
through organic loan and deposit growth, as well as highly opportunistic acquisitions. The Bank’s management team has utilized its
strong local community ties and experience with federal and New York bank regulatory agencies to create a bank that we believe emphasizes
strong credit quality, a solid balance sheet, and a robust capital base.
Our
principal executive offices are located at 80 East Jericho Turnpike, Mineola, New York 11501 and our telephone number is (516) 548-8500.
Our Internet address is www.hanoverbank.com. Please note that our website is provided as an inactive textual reference and the information
on our website is not incorporated by reference in this prospectus.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, including
the documents that we incorporate by reference, contains forward-looking statements within the meaning of Section 27A of the Securities Act
of 1933 and Section 21E of the Securities Exchange Act of 1934. Any statements about our expectations, beliefs, plans, objectives,
assumptions or future events or performance are not historical facts and may be forward-looking. These statements are often, but not always,
made through the use of words or phrases such as “anticipate,” “estimate,” “plans,” “projects,”
“continuing,” “ongoing,” “expects,” “management believes,” “we believe,” “we
intend” and similar words or phrases. Accordingly, these statements involve estimates, assumptions and uncertainties, which could
cause actual results to differ materially from those expressed in them. Any forward-looking statements are qualified in their entirety
by reference to the risk factors discussed in this prospectus or discussed in documents incorporated by reference in this prospectus.
Forward-looking statements
are subject to known and unknown risks and uncertainties, which change over time, and are based on management’s expectations and
assumptions at the time the statements are made, and are not guarantees of future results. Our actual results may differ materially from
those expressed or anticipated in the forward-looking statements for many reasons, including the factors described in the section entitled
“RISK FACTORS” in this prospectus, in any risk factors described in a supplement to this or in other filings.
You should not unduly rely
on these forward-looking statements, which speak only as of the date on which they are made. We undertake no obligation to publicly revise
any forward-looking statement to reflect circumstances or events after the date of this prospectus or to reflect the occurrence of unanticipated
events. You should, however, review the factors and risks we describe in the reports we file from time to time with the SEC after the
date of this prospectus. We undertake no obligation to revise or update the forward-looking statements contained in this prospectus at
any time.
RISK
FACTORS
An investment in our securities
involves risks. Before making an investment decision, you should carefully consider the risks described under “Risk Factors”
in the applicable prospectus supplement and in our most recent Annual Report on Form 10-K, and in all other information appearing
in this prospectus or incorporated by reference into this prospectus and any applicable prospectus supplement. The material risks and
uncertainties that management believes affect us will be described in those documents. In addition to those risk factors, there may be
additional risks and uncertainties of which management is not aware or focused on or that management deems immaterial. Our business, financial
condition or results of operations could be materially adversely affected by any of these risks. The trading price of our securities could
decline due to any of these risks, and you may lose all or part of your investment. This prospectus is qualified in its entirety by these
risk factors.
USE
OF PROCEEDS
Unless otherwise provided
in the applicable prospectus supplement to this prospectus used to offer specific securities, we expect to use the net proceeds from any
offering of securities by us for general corporate purposes, which may include acquisitions, capital expenditures, investments, (investments
in subsidiaries) and the repayment, redemption or refinancing of all or a portion of any indebtedness or other securities outstanding
at a particular time. Pending the application of the net proceeds, we expect to invest the proceeds in short-term, interest-bearing instruments
or other investment-grade securities.
DESCRIPTIONS
OF SECURITIES WE MAY OFFER
This prospectus contains summary
descriptions of the common stock, preferred stock, warrants, debt securities, depositary shares and units that we may offer and sell from
time to time. We may issue the debt securities as exchangeable and/or convertible debt securities exchangeable for or convertible into
shares of common stock or preferred stock. The preferred stock may also be exchangeable for and/or convertible into shares of common stock
or another series of preferred stock. When one or more of these securities are offered in the future, a prospectus supplement will explain
the particular terms of the securities and the extent to which these general provisions may apply. These summary descriptions and any
summary descriptions in the applicable prospectus supplement do not purport to be complete descriptions of the terms and conditions of
each security and are qualified in their entirety by reference to our restated certificate of incorporation, our by-laws and by applicable
New York law and any other documents referenced in such summary descriptions and from which such summary descriptions are derived. If
any particular terms of a security described in the applicable prospectus supplement differ from any of the terms described herein, then
the terms described herein will be deemed superseded by the terms set forth in that prospectus supplement.
We may issue securities in
book-entry form through one or more depositaries, such as The Depository Trust Company, or DTC, Euroclear or Clearstream, named in the
applicable prospectus supplement. Each sale of a security in book-entry form will settle in immediately available funds through the applicable
depositary, unless otherwise stated. We will issue the securities only in registered form, without coupons, although we may issue the
securities in bearer form if so specified in the applicable prospectus supplement. If any securities are to be listed or quoted on a securities
exchange or quotation system, the applicable prospectus supplement will say so.
DESCRIPTION
OF COMMON STOCK
General
Our amended and restated
certificate of incorporation provides that we may issue up to 32,000,000 shares of capital stock, of which
17,000,000 shares are designated as common stock, par value $0.01 per share, and 15,000,000 shares are designated as
preferred stock, par value $0.01 per share. Our board of directors is authorized to issue the preferred stock from time to time in
one or more classes or series, with such designations, preferences, rights and limitations as the board shall determine. We may
increase our authorized shares of capital stock subsequent to the date of this prospectus. As of January 23, 2024 there were
7,379,404 shares of our common stock outstanding and 150,000 shares of preferred stock issued and outstanding. All outstanding
shares of our common stock are fully paid and non-assessable. Our common stock is listed on the NASDAQ Global Select Market under
the symbol “HNVR.”
Dividend Rights
The Company is a legal entity
separate and distinct from the Bank. Virtually all of the Company’s revenue available for payment of dividends on its capital stock
will result from amounts paid to the Company by the Bank. All such dividends are subject to the laws of the state of New York, the New
York Banking Law, as amended, or the Banking Act, the Federal Deposit Insurance Act, or the FDIA, and the regulation of the New York State
Department of Financial Services (the “DFS”) and the FDIC.
Under the New York Business
Corporation Law, the Company is permitted to pay cash dividends provided that the payment does not leave us insolvent. As a bank holding
company under the Bank Holding Company Act of 1956, as amended, or the BHCA, we would be prohibited from paying cash dividends if
we are not in compliance with any capital requirements applicable to us. However, as a practical matter, for so long as our major operations
consist of ownership of the Bank, the Bank will remain our source of dividend payments, and our ability to pay dividends will be subject
to any restrictions applicable to the Bank.
Under the Banking Act, a New
York state chartered bank may generally declare a dividend, without approval from the DFS, in an amount equal to its year-to-date
net income plus the prior two years’ net income less dividends already paid. Dividends exceeding those amounts require application
to and approval by the DFS. To pay a cash dividend, the Bank must also maintain an adequate capital conservation buffer as required under
FDIC regulations. The payment of dividends is also dependent upon the Bank’s ability to maintain adequate capital ratios pursuant
to applicable regulatory requirements.
The FRB has issued a policy
statement regarding the payment of dividends by bank holding companies. In general, the FRB’s policies provide that dividends should
be paid only out of current earnings and only if the prospective rate of earnings retention by the bank holding company appears consistent
with the organization’s capital needs, asset quality and overall financial condition. FRB regulations also require that a bank holding
company serve as a source of financial strength to its subsidiary banks by standing ready to use available resources to provide adequate
capital funds to those banks during periods of financial stress or adversity and by maintaining the financial flexibility and capital-raising
capacity to obtain additional resources for assisting its subsidiary banks where necessary. Under the prompt corrective action laws, the
ability of a bank holding company to pay dividends may be restricted if a subsidiary bank becomes undercapitalized, and under regulations
implementing the Basel III Accordingly, a bank holding company’s ability to pay cash dividends may be impaired if it fails
to satisfy certain capital buffer requirements. These regulatory policies could affect the ability of the Company to pay dividends or
otherwise engage in capital distributions.
Voting Rights
Each outstanding share of
our common stock entitles the holder to one vote on all matters submitted to a vote of our shareholders, except as otherwise required
by law. The quorum for shareholders’ meetings is a majority of the outstanding shares. Generally, actions and authorizations to
be taken or given by shareholders require the approval of a majority of the votes cast by holders of our common stock at a meeting at
which a quorum is present. There is no cumulative voting.
Liquidation Rights
In the event of liquidation,
dissolution or winding up of the Company, holders of our common stock are entitled to share equally and ratably in assets available for
distribution after payment of debts and liabilities, subject to the rights of the holders of our preferred stock described below.
Assessment and Redemption
All outstanding shares of
our common stock are fully paid and non-assessable. Our common stock is not redeemable at the option of the issuer or the holders thereof.
Other Matters
Certain provisions in our
restated certificate of incorporation, applicable New York corporate law and applicable federal banking law may have the effect of discouraging
a change of control of the Company, even if such a transaction is favored by some of our shareholders and could result in shareholders
receiving a substantial premium over the current market price of our shares. The primary purpose of these provisions is to encourage negotiations
with our management by persons interested in acquiring control of our corporation. These provisions may also tend to perpetuate present
management and make it difficult for shareholders owning less than a majority of the shares to be able to elect even a single director.
Computershare Inc. is presently
the transfer agent and registrar for our common stock.
DESCRIPTION
OF PREFERRED STOCK
“Blank Check” Preferred Stock
The 14,850,000 unissued shares
of preferred stock are typically referred to as “blank check” preferred stock. This term refers to stock for which the rights
and restrictions are determined by the board of directors of a corporation. In general, our restated certificate of incorporation authorizes
our board of directors to issue new shares of our common stock or preferred stock without further shareholder action, provided that there
are sufficient authorized shares.
The issuance of additional
common or preferred stock may be viewed as having adverse effects upon the holders of common stock. Holders of our common stock do not
have preemptive rights with respect to any newly issued stock. Our board could adversely affect the voting power of holders of our common
stock by issuing shares of preferred stock with certain voting, conversion and/or redemption rights. In the event of a proposed merger,
tender offer or other attempt to gain control of the Company that the board of directors does not believe to be in the best interests
of its shareholders, the board could issue additional preferred stock which could make any such takeover attempt more difficult to complete.
Our board of directors does not intend to issue any additional preferred stock except on terms that the board deems to be in the best
interests of our company and our shareholders.
Terms of the Preferred Stock That We May Offer and Sell
to You
We summarize below some of
the provisions that will apply to the preferred stock that we may offer to you unless the applicable prospectus supplement provides otherwise.
This summary may not contain all information that is important to you. The complete terms of the preferred stock will be contained in
the prospectus supplement. You should read the prospectus supplement, which will contain additional information and which may update or
change some of the information below.
Our board of directors has
the authority, without further action by the shareholders, to issue preferred stock in one or more series and to fix the number of shares,
dividend rights, conversion rights, voting rights, redemption rights, liquidation preferences, sinking funds, and any other rights, preferences,
privileges and restrictions applicable to each such series of preferred stock.
Prior to the issuance of a
new series of preferred stock, we will further amend our restated certificate of incorporation, designating the stock of that series and
the terms of that series. The issuance of any preferred stock could adversely affect the rights of the holders of common stock and, therefore,
reduce the value of the common stock. The ability of our board of directors to issue preferred stock could discourage, delay or prevent
a takeover or other corporate action.
The terms of any particular
series of preferred stock will be described in the prospectus supplement relating to that particular series of preferred stock, including,
where applicable:
| · | the designation, stated value and liquidation preference of such preferred stock and the amount of stock
offered; |
| · | the dividend rate or rates (or method of calculation), the date or dates from which dividends shall accrue,
and whether such dividends shall be cumulative or noncumulative and, if cumulative, the dates from which dividends shall commence to cumulate; |
| · | any redemption or sinking fund provisions; |
| · | the amount that shares of such series shall be entitled to receive in the event of our liquidation, dissolution
or winding-up; |
| · | the terms and conditions, if any, on which shares of such series shall be convertible or exchangeable
for shares of our stock of any other class or classes, or other series of the same class; |
| · | the voting rights, if any, of shares of such series; |
| · | the status as to reissuance or sale of shares of such series redeemed, purchased or otherwise reacquired,
or surrendered to us on conversion or exchange; |
| · | the conditions and restrictions, if any, on the payment of dividends or on the making of other distributions
on, or the purchase, redemption or other acquisition by us or any subsidiary, of the common stock or of any other class of our shares
ranking junior to the shares of such series as to dividends or upon liquidation; |
| · | the conditions and restrictions, if any, on the creation of indebtedness by us or by any subsidiary, or
on the issuance of any additional stock ranking on a parity with or prior to the shares of such series as to dividends or upon liquidation;
and |
| · | any additional dividend, liquidation, redemption, sinking or retirement fund and other rights, preferences,
privileges, limitations and restrictions of such preferred stock. |
The description of the terms
of a particular series of preferred stock in the applicable prospectus supplement will not be complete. You should refer to the applicable
amendment to our restated certificate of incorporation for complete information regarding a series of preferred stock.
The preferred stock will,
when issued against payment of the consideration payable therefore, be fully paid and nonassessable. Unless otherwise specified in the
applicable prospectus supplement, each series of preferred stock will, upon issuance, rank senior to the common stock and on parity in
all respects with each other outstanding series of preferred stock. The rights of the holders of our preferred stock will be subordinate
to that of our general creditors.
DESCRIPTION
OF WARRANTS
We
summarize below some of the provisions that will apply to the warrants unless the applicable prospectus supplement provides otherwise.
This summary may not contain all information that is important to you. The complete terms of the warrants will be contained in
the applicable warrant certificate and warrant agreement. These documents have been or will be included or incorporated by reference as
exhibits to the registration statement of which this prospectus is a part. You should read the warrant certificate and the warrant agreement.
You should also read the prospectus supplement, which will contain additional information and which may update or change some of the information
below.
General
We may issue, together with
other securities or separately, warrants to purchase debt securities, common stock, preferred stock or other securities. We may issue
the warrants under warrant agreements to be entered into between us and a bank or trust company, as warrant agent, all as set forth in
the applicable prospectus supplement. The warrant agent would act solely as our agent in connection with the warrants of the series being
offered and would not assume any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants.
The applicable prospectus
supplement will describe the following terms, where applicable, of warrants in respect of which this prospectus is being delivered:
| · | the title of the warrants; |
| · | the designation, amount and terms of the securities for which the warrants are exercisable and the procedures
and conditions relating to the exercise of such warrants; |
| · | the designation and terms of the other securities, if any, with which the warrants are to be issued and
the number of warrants issued with each such security; |
| · | the price or prices at which the warrants will be issued; |
| · | the aggregate number of warrants; |
| · | any provisions for adjustment of the number or amount of securities receivable upon exercise of the warrants
or the exercise price of the warrants; |
| · | the price or prices at which the securities purchasable upon exercise of the warrants may be purchased; |
| · | if applicable, the date on and after which the warrants and the securities purchasable upon exercise of
the warrants will be separately transferable; |
| · | if applicable, a discussion of the material U.S. federal income tax considerations applicable to the warrants; |
| · | any other terms of the warrants, including terms, procedures and limitations relating to the exchange
and exercise of the warrants; |
| · | the date on which the right to exercise the warrants shall commence and the date on which the right shall
expire; |
| · | if applicable, the maximum or minimum number of warrants which may be exercised at any time; |
| · | the identity of the warrant agent; |
| · | any mandatory or optional redemption provision; |
| · | whether the warrants are to be issued in registered or bearer form; |
| · | whether the warrants are extendible and the period or periods of such extendibility; |
| · | information with respect to book-entry procedures, if any; and |
| · | any other terms of the warrants. |
Before exercising their warrants,
holders of warrants will not have any of the rights of holders of the securities purchasable upon such exercise, including the right to
receive dividends, if any, or payments upon our liquidation, dissolution or winding-up or to exercise voting rights, if any.
Exercise of Warrants
Each warrant will entitle
the holder thereof to purchase the amount of such principal amounts of debt securities or such number of shares of common stock or preferred
stock or other securities at the exercise price as will in each case be set forth in, or be determinable as set forth in, the applicable
prospectus supplement. Warrants may be exercised at any time up to the close of business on the expiration date set forth in the applicable
prospectus supplement. After the close of business on the expiration date, unexercised warrants will become void. Warrants may be exercised
as set forth in the applicable prospectus supplement relating to the warrants offered thereby. Upon receipt of payment and the warrant
certificate properly completed and duly executed at the corporate trust office of the warrant agent or any other office indicated in the
applicable prospectus supplement, we will, as soon as practicable, forward the purchased securities. If less than all of the warrants
represented by the warrant certificate are exercised, a new warrant certificate will be issued for the remaining warrants.
Enforceability of Rights of Holders of Warrants
Each warrant agent will act
solely as our agent under the applicable warrant agreement and will not assume any obligation or relationship of agency or trust with
any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue of warrants. A warrant agent
will have no duty or responsibility in case of any default by us under the applicable warrant agreement or warrant, including any duty
or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a warrant may, without
the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate legal action its right to exercise,
and receive the securities purchasable upon exercise of, that holder’s warrant(s).
Modification of the Warrant Agreement
The warrant agreement will
permit us and the warrant agent, without the consent of the warrant holders, to supplement or amend the agreement in the following circumstances:
| ● | to correct or supplement any provision which may be defective or inconsistent with any other provisions; or |
| ● | to add new provisions regarding matters or questions that we and the warrant agent may deem necessary or desirable and which do not
adversely affect the interests of the warrant holders. |
DESCRIPTION
OF DEBT SECURITIES
We summarize below some of
the provisions that will apply to the debt securities unless the applicable prospectus supplement provides otherwise. This summary may
not contain all information that is important to you. The complete terms of the debt securities will be contained in the applicable notes.
The notes will be included or incorporated by reference as exhibits to the registration statement of which this prospectus is a part.
You should read the provisions of the notes. You should also read the prospectus supplement, which will contain additional information
and which may update or change some of the information below.
General
This prospectus describes
certain general terms and provisions of the debt securities. The debt securities will be issued under an indenture between us and a trustee
to be designated prior to the issuance of the debt securities. When we offer to sell a particular series of debt securities, we will describe
the specific terms of the securities in a supplement to this prospectus. The prospectus supplement will also indicate whether the general
terms and provisions described in this prospectus apply to a particular series of debt securities.
We may issue, from time to
time, debt securities, in one or more series, that will consist of either our senior debt (“senior debt securities”), our
senior subordinated debt (“senior subordinated debt securities”), our subordinated debt (“subordinated debt securities”)
or our junior subordinated debt (“junior subordinated debt securities” and, together with the senior subordinated debt securities
and the subordinated debt securities, the “subordinated securities”). Debt securities, whether senior, senior subordinated,
subordinated or junior subordinated, may be issued as convertible debt securities or exchangeable debt securities.
We have summarized herein
certain terms and provisions of the form of indenture (the “indenture”). The summary is not complete and is qualified in its
entirety by reference to the actual text of the indenture. The indenture is an exhibit to the registration statement of which this prospectus
is a part. You should read the indenture for the provisions which may be important to you. The indenture is subject to and governed by
the Trust Indenture Act of 1939, as amended, or the Trust Indenture Act.
The indenture does not limit
the amount of debt securities which we may issue. We may issue debt securities up to an aggregate principal amount as we may authorize
from time to time, which securities may be in any currency or currency unit designated by us. The terms of each series of debt securities
will be established by or pursuant to (a) a supplemental indenture, (b) a resolution of our board of directors, or (c) an
officers’ certificate pursuant to authority granted under a resolution of our board of directors. The prospectus supplement will
describe the terms of any debt securities being offered, including:
| · | the title of the debt securities; |
| · | the limit, if any, upon the aggregate principal amount or issue price of the debt securities of a series; |
| · | ranking of the specific series of debt securities relative to other outstanding indebtedness, including
any debt of any of our subsidiaries; |
| · | the price or prices at which the debt securities will be issued; |
| · | the designation, aggregate principal amount and authorized denominations of the series of debt securities; |
| · | the issue date or dates of the series and the maturity date of the series; |
| · | whether the securities will be issued at par or at a premium over or a discount from their face amount; |
| · | the interest rate, if any, and the method for calculating the interest rate and basis upon which interest shall be calculated; |
| · | the right, if any, to extend interest payment periods and the duration of the extension; |
| · | the interest payment dates and the record dates for the interest payments; |
| · | any mandatory or optional redemption terms or prepayment, conversion, sinking fund or exchangeability or convertibility provisions; |
| · | the currency of denomination of the securities; |
| · | the place where we will pay principal, premium, if any, and interest, if any, and the place where the debt securities may be presented
for transfer; |
| · | if payments of principal of, premium, if any, or interest, if any, on the debt securities will be made in one or more currencies or
currency units other than that or those in which the debt securities are denominated, the manner in which the exchange rate with respect
to these payments will be determined; |
| · | if other than denominations of $1,000 or multiples of $1,000, the denominations the debt securities will be issued in; |
| · | whether the debt securities will be issued in the form of global securities or certificates; |
| · | the applicability of and additional provisions, if any, relating to the defeasance of the debt securities; |
| · | the portion of principal amount of the debt securities payable upon declaration of acceleration of the maturity date, if other than
the entire principal amount; |
| · | the currency or currencies, if other than the currency of the United States, in which principal and interest will be paid; |
| · | the dates on which premium, if any, will be paid; |
| · | any addition to or change in the “Events of Default” described in this prospectus or in the indenture with respect to
the debt securities and any change in the acceleration provisions described in this prospectus or in the indenture with respect to the
debt securities; |
| · | any addition to or change in the covenants described in the prospectus or in the indenture with respect to the debt securities; |
| · | our right, if any, to defer payment of interest and the maximum length of this deferral period; and |
| · | other specific terms, including any additional events of default or covenants. |
We may issue debt securities
at a discount below their stated principal amount. Even if we do not issue the debt securities below their stated principal amount, for
United States federal income tax purposes, the debt securities may be deemed to have been issued with a discount because of certain interest
payment characteristics. We will describe in any applicable prospectus supplement the United States federal income tax considerations
applicable to debt securities issued at a discount or deemed to be issued at a discount, and will describe any special United States federal
income tax considerations that may be applicable to the particular debt securities.
We may structure one or more
series of subordinated securities so that they qualify as capital under federal regulations applicable to bank holding companies. We may
adopt this structure whether or not those regulations may be applicable to us at the time of issuance.
We are a holding company
and Hanover Bancorp’s operating assets are owned by our subsidiaries. We rely primarily on dividends from such subsidiaries to meet
our obligations. We are a legal entity separate and distinct from our subsidiaries. The principal sources of our income are dividends
and interest from the Bank. The Bank is subject to restrictions imposed by federal law on any extensions of credit to, and certain other
transactions with, us and certain other affiliates, and on investments in stock or other securities thereof. In addition, payment of dividends
to us by the Bank is subject to ongoing review by banking regulators. Because we are a holding company, our right to participate in any
distribution of assets of any subsidiary upon the subsidiary’s liquidation or reorganization or otherwise is subject to the prior
claims of creditors of the subsidiary, except to the extent we may ourselves be recognized as a creditor of that subsidiary. Accordingly,
the debt securities will be effectively subordinated to all existing and future liabilities, including deposits, of our subsidiaries,
and holders of the debt securities should look only to our assets for payments on the debt securities. The indenture does not limit the
incurrence or issuance of our secured or unsecured debt including senior indebtedness.
Senior Debt
Senior debt securities will
rank equally and pari passu with all of our other unsecured and unsubordinated debt from time to time outstanding.
Subordinated Debt
The indenture does not limit
our ability to issue subordinated debt securities. Any subordination provisions of a particular series of debt securities will be set
forth in the supplemental indenture, board resolution or officers’ certificate related to that series of debt securities and will
be described in the relevant prospectus supplement.
If this prospectus is being
delivered in connection with a series of subordinated debt securities, the accompanying prospectus supplement or the information incorporated
by reference in this prospectus will set forth the approximate amount of senior indebtedness outstanding as of the end of the most recent
fiscal quarter.
Conversion or Exchange Rights
Debt securities may be convertible
into or exchangeable for our property. The terms and conditions of conversion or exchange will be set forth in the supplemental indenture,
board resolution or officers’ certificate related to that series of debt securities and will be described in the relevant prospectus
supplement. The terms will include, among others, the following:
| · | the conversion or exchange price; |
| · | the conversion or exchange period; |
| · | provisions regarding our ability or the ability of the holder to convert or exchange the debt securities; |
| · | events requiring adjustment to the conversion or exchange price; and |
| · | provisions affecting conversion or exchange in the event of our redemption of the debt securities. |
Merger, Consolidation or Sale of Assets
The indenture prohibits us
from merging into or consolidating with any other person or selling, leasing or conveying substantially all of our assets and the assets
of our subsidiaries, taken as a whole, to any person, unless:
| · | either we are the continuing corporation or the successor corporation or the person which acquires by
sale, lease or conveyance substantially all our or our subsidiaries’ assets is a corporation organized under the laws of the United
States, any state thereof, or the District of Columbia, and expressly assumes the due and punctual payment of the principal of, and premium,
if any, and interest, if any, on all the debt securities and the due performance of every covenant of the indenture to be performed or
observed by us, by supplemental indenture satisfactory to the trustee, executed and delivered to the trustee by such corporation; |
| · | immediately after giving effect to such transactions, no Event of Default described under the caption
“Events of Default and Remedies” below or event which, after notice or lapse of time or both would become an Event of Default,
has happened and is continuing; and |
| · | we have delivered to the trustee an officers’ certificate and an opinion of counsel each stating
that such transaction and such supplemental indenture comply with the indenture provisions relating to merger, consolidation and sale
of assets. |
Upon any consolidation or
merger with or into any other person or any sale, conveyance, lease, or other transfer of all or substantially all of our or our subsidiaries’
assets to any person, the successor person shall succeed, and be substituted for, us under the indenture and each series of outstanding
debt securities, and we shall be relieved of all obligations under the indenture and each series of outstanding debt securities to the
extent we were the predecessor person.
Events of Default and Remedies
When we use the term “Event
of Default” in the indenture with respect to the debt securities of any series, we mean:
| (1) | default in paying interest on the debt securities when it becomes due and the default continues for a
period of 30 days or more; |
| (2) | default in paying principal, or premium, if any, on the debt securities when due; |
| (3) | default is made in the payment of any sinking or purchase fund or analogous obligation when the same becomes
due, and such default continues for 30 days or more; |
| (4) | default in the performance, or breach, of any covenant or warranty in the indenture (other than defaults
specified in clause (1), (2) or (3) above) and the default or breach continues for a period of 60 days or more after we receive
written notice of such default from the trustee or we and the trustee receive notice from the holders of at least 25% in aggregate principal
amount of the outstanding debt securities of the series; |
| (5) | certain events of bankruptcy, insolvency, reorganization, administration or similar proceedings with respect
to us have occurred; and |
| (6) | any other Event of Default provided with respect to debt securities of that series that is set forth in
the applicable prospectus supplement accompanying this prospectus. |
No Event of Default with respect
to a particular series of debt securities (except as to certain events of bankruptcy, insolvency or reorganization) necessarily constitutes
an Event of Default with respect to any other series of debt securities. The occurrence of certain Events of Default or an acceleration
under the indenture may constitute an event of default under certain of our other indebtedness that we may have outstanding from time
to time. Unless otherwise provided by the terms of an applicable series of debt securities, if an Event of Default under the indenture
occurs with respect to the debt securities of any series and is continuing, then the trustee or the holders of not less than 51% of the
aggregate principal amount of the outstanding debt securities of that series may by written notice require us to repay immediately the
entire principal amount of the outstanding debt securities of that series (or such lesser amount as may be provided in the terms of the
securities), together with all accrued and unpaid interest and premium, if any. In the case of an Event of Default resulting from certain
events of bankruptcy, insolvency or reorganization, the principal (or such specified amount) of and accrued and unpaid interest, if any,
on all outstanding debt securities will become and be immediately due and payable without any declaration or other act on the part of
the trustee or any holder of outstanding debt securities. We refer you to the prospectus supplement relating to any series of debt securities
that are discount securities for the particular provisions relating to acceleration of a portion of the principal amount of such discount
securities upon the occurrence of an Event of Default.
After a declaration of acceleration,
the holders of a majority in aggregate principal amount of outstanding debt securities of any series may rescind this accelerated payment
requirement if all existing Events of Default, except for nonpayment of the principal on the debt securities of that series that has become
due solely as a result of the accelerated payment requirement, have been cured or waived and if the rescission of acceleration would not
conflict with any judgment or decree. The holders of a majority in aggregate principal amount of the outstanding debt securities of any
series also have the right to waive past defaults, except a default in paying principal or interest on any outstanding debt security,
or in respect of a covenant or a provision that cannot be modified or amended without the consent of all holders of the debt securities
of that series.
No holder of any debt security
may seek to institute a proceeding with respect to the indenture unless such holder has previously given written notice to the trustee
of a continuing Event of Default, the holders of not less than 51% in aggregate principal amount of the outstanding debt securities of
the series have made a written request to the trustee to institute proceedings in respect of the Event of Default, the holder or holders
have offered reasonable indemnity to the trustee and the trustee has failed to institute such proceeding within 60 days after it received
this notice. In addition, within this 60-day period, the trustee must not have received directions inconsistent with this written request
by holders of a majority in aggregate principal amount of the outstanding debt securities of that series. These limitations do not apply,
however, to a suit instituted by a holder of a debt security for the enforcement of the payment of principal, interest or any premium
on or after the due dates for such payment.
During the existence of an
Event of Default actually known to a responsible officer of the trustee, the trustee is required to exercise the rights and powers vested
in it under the indenture and use the same degree of care and skill in its exercise as a prudent person would under the circumstances
in the conduct of that person’s own affairs. If an Event of Default has occurred and is continuing, the trustee is not under any
obligation to exercise any of its rights or powers at the request or direction of any of the holders unless the holders have offered to
the trustee security or indemnity reasonably satisfactory to the trustee. Subject to certain provisions, the holders of a majority in
aggregate principal amount of the outstanding debt securities of any series 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.
The trustee will, within 90
days after receiving notice of any default, give notice of the default to the holders of the debt securities of that series, unless the
default was already cured or waived. Unless there is a default in paying principal, interest or any premium when due, the trustee can
withhold giving notice to the holders if it determines in good faith that the withholding of notice is in the interest of the holders.
In the case of a default specified in clause (4) above describing Events of Default, no notice of default to the holders of the debt
securities of that series will be given until 60 days after the occurrence of the event of default.
The indenture requires us,
within 120 days after the end of our fiscal year, to furnish to the trustee a statement as to compliance with the indenture. The indenture
provides that the trustee may withhold notice to the holders of debt securities of any series of any Event of Default (except in payment
on any debt securities of that series) with respect to debt securities of that series if it in good faith determines that withholding
notice is in the interest of the holders of those debt securities.
Modification and Waiver
The indenture may be amended
or modified without the consent of any holder of debt securities in order to:
| · | evidence a successor to the trustee; |
| · | cure ambiguities, defects or inconsistencies; |
| · | provide for the assumption of our obligations in the case of a merger or consolidation or transfer of
all or substantially all of our assets that complies with the covenant described under “— Merger, Consolidation or Sale of
Assets”; |
| · | make any change that would provide any additional rights or benefits to the holders of the debt securities
of a series; |
| · | add guarantors or co-obligors with respect to the debt securities of any series; |
| · | secure the debt securities of a series; |
| · | establish the form or forms of debt securities of any series; |
| · | add additional Events of Default with respect to the debt securities of any series; |
| · | add additional provisions as may be expressly permitted by the Trust Indenture Act; |
| · | maintain the qualification of the indenture under the Trust Indenture Act; or |
| · | make any change that does not adversely affect in any material respect the interests of any holder. |
Other amendments and modifications
of the indenture or the debt securities issued may be made with the consent of the holders of not less than a majority in aggregate principal
amount of the outstanding debt securities of each series affected by the amendment or modification. However, no modification or amendment
may, without the consent of the holder of each outstanding debt security affected:
| · | change the maturity date or the stated payment date of any payment of premium or interest payable on the
debt securities; |
| · | reduce the principal amount, or extend the fixed maturity, of the debt securities; |
| · | change the method of computing the amount of principal or any interest of any debt security; |
| · | change or waive the redemption or repayment provisions of the debt securities; |
| · | change the currency in which principal, any premium or interest is paid or the place of payment; |
| · | reduce the percentage in principal amount outstanding of debt securities of any series which must consent
to an amendment, supplement or waiver or consent to take any action; |
| · | impair the right to institute suit for the enforcement of any payment on the debt securities; |
| · | waive a payment default with respect to the debt securities; |
| · | reduce the interest rate or extend the time for payment of interest on the debt securities; |
| · | adversely affect the ranking or priority of the debt securities of any series; or |
| · | release any guarantor or co-obligor from any of its obligations under its guarantee or the indenture,
except in compliance with the terms of the indenture. |
Satisfaction, Discharge and Covenant Defeasance
We may terminate our obligations
under the indenture with respect to the outstanding debt securities of any series, when:
| o | all debt securities of any series issued that have been authenticated and delivered have been delivered
to the trustee for cancellation; or |
| o | all the debt securities of any series issued that have not been delivered to the trustee for cancellation
have become due and payable, will become due and payable within one year, or are to be called for redemption within one year and we have
made arrangements satisfactory to the trustee for the giving of notice of redemption by such trustee in our name and at our expense, and
in each case, we have irrevocably deposited or caused to be deposited with the trustee sufficient funds to pay and discharge the entire
indebtedness on the series of debt securities; and |
| · | we have paid or caused to be paid all other sums then due and payable under the indenture; and |
| · | we have delivered to the trustee an officers’ certificate and an opinion of counsel, each stating
that all conditions precedent under the indenture relating to the satisfaction and discharge of the indenture have been complied with. |
We may elect to have our obligations
under the indenture discharged with respect to the outstanding debt securities of any series (“legal defeasance”). Legal defeasance
means that we will be deemed to have paid and discharged the entire indebtedness represented by the outstanding debt securities of such
series under the indenture, except for:
| · | the rights of holders of the debt securities to receive principal, interest and any premium when due; |
| · | our obligations with respect to the debt securities concerning issuing temporary debt securities, registration
of transfer of debt securities, mutilated, destroyed, lost or stolen debt securities and the maintenance of an office or agency for payment
for security payments held in trust; |
| · | the rights, powers, trusts, duties and immunities of the trustee; and |
| · | the defeasance provisions of the indenture. |
In addition, we may elect
to have our obligations released with respect to certain covenants in the indenture (“covenant defeasance”). If we so
elect, any failure to comply with these obligations will not constitute a default or an event of default with respect to the debt securities
of any series. In the event covenant defeasance occurs, certain events, not including non-payment, bankruptcy and insolvency events, described
under “Events of Default and Remedies,” will no longer constitute an event of default for that series.
In order to exercise either
legal defeasance or covenant defeasance with respect to outstanding debt securities of any series, we must irrevocably have deposited
or caused to be deposited with the trustee as trust funds for the purpose of making the following payments, specifically pledged as security
for, and dedicated solely to the benefits of the holders of the debt securities of a series:
| · | U.S. government obligations (or equivalent government obligations in the case of debt securities denominated in other than U.S. dollars
or a specified currency) that will provide, not later than one day before the due date of any payment, money in an amount; or |
| · | a combination of money and U.S. government obligations (or equivalent government obligations, as applicable), |
in each case sufficient, in the written opinion
(with respect to U.S. or equivalent government obligations or a combination of money and U.S. or equivalent government obligations, as
applicable) of a nationally recognized firm of independent public accountants to pay and discharge, and which shall be applied by the
trustee to pay and discharge, all of the principal (including mandatory sinking fund payments), interest and any premium at due date or
maturity;
| · | in the case of legal defeasance, we have delivered to the trustee an opinion of counsel stating that, under then applicable federal
income tax law, the holders of the debt securities of that series will not recognize income, gain or loss for federal income tax purposes
as a result of the deposit, defeasance and discharge to be effected and will be subject to the same federal income tax as would be the
case if the deposit, defeasance and discharge did not occur; |
| · | in the case of covenant defeasance, we have delivered to the trustee an opinion of counsel to the effect that the holders of the debt
securities of that series will not recognize income, gain or loss for federal income tax purposes as a result of the deposit and covenant
defeasance to be effected and will be subject to the same federal income tax as would be the case if the deposit and covenant defeasance
did not occur; |
| · | no event of default or default with respect to the outstanding debt securities of that series has occurred and is continuing at the
time of such deposit after giving effect to the deposit or, in the case of legal defeasance, no default relating to bankruptcy or insolvency
has occurred and is continuing at any time on or before the 91st day after the date of such deposit, it being understood that this condition
is not deemed satisfied until after the 91st day; |
| · | the legal defeasance or covenant defeasance will not cause the trustee to have a conflicting interest within the meaning of the Trust
Indenture Act, assuming all debt securities of a series were in default within the meaning of such Act; |
| · | the legal defeasance or covenant defeasance will not result in a breach or violation of, or constitute a default under, any other
agreement or instrument to which we are a party; |
| · | if prior to the stated maturity date, notice shall have been given in accordance with the provisions of the indenture; |
| · | the legal defeasance or covenant defeasance will not result in the trust arising from such deposit constituting an investment company
within the meaning of the Investment Company Act of 1940, as amended, unless the trust is registered under such Act or exempt from registration;
and |
| · | we have delivered to the trustee an officers’ certificate and an opinion of counsel stating that all conditions precedent with
respect to the legal defeasance or covenant defeasance have been complied with. |
Covenants
We will set forth in the applicable
prospectus supplement any restrictive covenants applicable to any issue of debt securities.
Paying Agent and Registrar
The trustee will initially
act as paying agent and registrar for all debt securities. We may change the paying agent or registrar for any series of debt securities
without prior notice, and we or any of our subsidiaries may act as paying agent or registrar.
Forms of Securities
Each debt security 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 the series of debt securities. Certificated securities will be issued 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 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.
Global Securities
We may issue the registered
debt securities in the form of one or more fully registered global securities that will be deposited with a depositary or its custodian
identified in the applicable prospectus supplement and registered in the name of that depositary or its 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 indenture. 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 indenture. 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 indenture. We understand that under existing industry practices, if we request any action of holders
or if an owner of a beneficial interest in a registered global security desires to give or take any action that a holder is entitled to
give or take under the indenture, the depositary for the registered global security would authorize the participants holding the relevant
beneficial interests to give or take 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 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. Neither
we nor the trustee or any other agent of ours or the trustee 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 of principal, premium, interest or
other distribution of underlying securities or other property to holders 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 in bearer form or 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 trustee or other relevant agent of ours or theirs. It is expected that the depositary’s
instructions will be based upon 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.
Unless we state otherwise
in a prospectus supplement, DTC will act as depositary for each series of debt securities issued as global securities. DTC has advised
us that DTC is a limited-purpose trust company created to hold securities for its participating organizations, collectively, the “Participants”
and to facilitate the clearance and settlement of transactions in those securities between Participants through electronic book-entry
changes in accounts of its Participants. The Participants include securities brokers and dealers, banks, trust companies, clearing corporations
and certain other organizations. Access to DTC’s system is also available to other entities such as banks, brokers, dealers and
trust companies that clear through or maintain a custodial relationship with a Participant, either directly or indirectly, collectively,
the “Indirect Participants”. Persons who are not Participants may beneficially own securities held by or on behalf of DTC
only through the Participants or the Indirect Participants. The ownership interests in, and transfers of ownership interests in, each
security held by or on behalf of DTC are recorded on the records of the Participants and the Indirect Participants.
Governing Law
The indenture and each series
of debt securities are governed by, and construed in accordance with, the laws of the State of New York.
DESCRIPTION
OF DEPOSITARY SHARES
We summarize below some of
the provisions that will apply to depositary shares unless the applicable prospectus supplement provides otherwise. This summary may not
contain all information that is important to you. The complete terms of the depositary shares will be contained in the depositary agreement
and depositary receipt applicable to any depositary shares. These documents have been or will be included or incorporated by reference
as exhibits to the registration statement of which this prospectus is a part. You should read the depositary agreement and the depositary
receipt. You should also read the prospectus supplement, which will contain additional information and which may update or change some
of the information below.
General
We may offer fractional shares
of preferred stock, rather than full shares of preferred stock. If we do so, we may issue receipts for depositary shares that each represent
a fraction of a share of a particular series of preferred stock. The prospectus supplement will indicate that fraction. The shares of
preferred stock represented by depositary shares will be deposited under a depositary agreement between us and a bank or trust company
that meets certain requirements and is selected by us, which we refer to as the “bank depositary.” Each owner of a depositary
share will be entitled to all the rights and preferences of the preferred stock represented by the depositary share. The depositary shares
will be evidenced by depositary receipts issued pursuant to the depositary agreement. Depositary receipts will be distributed to those
persons purchasing the fractional shares of preferred stock in accordance with the terms of the offering.
The following summary description
of certain common provisions of a depositary agreement and the related depositary receipts and any summary description of the depositary
agreement and depositary receipts in the applicable prospectus supplement do not purport to be complete and are qualified in their entirety
by reference to all of the provisions of such depositary agreement and depositary receipts. The forms of the depositary agreement and
the depositary receipts relating to any particular issue of depositary shares will be filed with the SEC each time we issue depositary
shares, and you should read those documents for provisions that may be important to you.
Dividends and Other Distributions
If we pay a cash distribution
or dividend on a series of preferred stock represented by depositary shares, the bank depositary will distribute such dividends to the
record holders of such depositary shares. If the distributions are in property other than cash, the bank depositary will distribute the
property to the record holders of the depositary shares. However, if the bank depositary determines that it is not feasible to make the
distribution of property, the bank depositary may, with our approval, sell such property and distribute the net proceeds from such sale
to the record holders of the depositary shares.
Redemption of Depositary Shares
If we redeem a series of preferred
stock represented by depositary shares, the bank depositary will redeem the depositary shares from the proceeds received by the bank depositary
in connection with the redemption. The redemption price per depositary share will equal the applicable fraction of the redemption price
per share of the preferred stock. If fewer than all the depositary shares are redeemed, the depositary shares to be redeemed will be selected
by lot or pro rata as the bank depositary may determine.
Voting the Preferred Stock
Upon receipt of notice of
any meeting at which the holders of the preferred stock represented by depositary shares are entitled to vote, the bank depositary will
mail the notice to the record holder of the depositary shares relating to such preferred stock. Each record holder of these depositary
shares on the record date, which will be the same date as the record date for the preferred stock, may instruct the bank depositary as
to how to vote the preferred stock represented by such holder’s depositary shares. The bank depositary will endeavor, insofar as
practicable, to vote the amount of the preferred stock represented by such depositary shares in accordance with such instructions, and
we will take all action that the bank depositary deems necessary in order to enable the bank depositary to do so. The bank depositary
will abstain from voting shares of the preferred stock to the extent it does not receive specific instructions from the holders of depositary
shares representing such preferred stock.
Amendment and Termination of the Depositary Agreement
Unless otherwise provided
in the applicable prospectus supplement or required by law, the form of depositary receipt evidencing the depositary shares and any provision
of the depositary agreement may be amended by agreement between the bank depositary and us. The depositary agreement may be terminated
by the bank depositary or us only if:
| · | all outstanding depositary shares have been redeemed, or |
| · | there has been a final distribution in respect of the preferred stock in connection with the liquidation,
dissolution or winding up of our company, and such distribution has been distributed to the holders of depositary receipts. |
Charges of Bank 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 bank
depositary in connection with the initial deposit of the preferred stock and any redemption of the preferred stock. Holders of depositary
receipts will pay other transfer and other taxes and governmental charges and any other charges, including a fee for the withdrawal of
shares of preferred stock upon surrender of depositary receipts, as are expressly provided in the depositary agreement for their accounts.
Withdrawal of Preferred Stock
Except as may be provided
otherwise in the applicable prospectus supplement, upon surrender of depositary receipts at the principal office of the bank depositary,
subject to the terms of the depositary agreement, the owner of the depositary shares may demand delivery of the number of whole shares
of preferred stock and all money and other property, if any, represented by those depositary shares. Partial or fractional shares of preferred
stock will not be issued. If the depositary receipts delivered by the holders 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 bank depositary will deliver
to such holder at the same time, a new depositary receipt evidencing the excess number of depositary shares. Holders of preferred stock
thus withdrawn may not thereafter deposit those shares under the depositary agreement or receive depositary receipts evidencing depositary
shares therefor.
Miscellaneous
The bank depositary will forward
to holders of depositary receipts all reports and communications from us that are delivered to the bank depositary and that we are required
to furnish to the holders of the preferred stock.
Neither the bank depositary
nor we will be liable if we are prevented or delayed by law or any circumstance beyond our control in performing our obligations under
the depositary agreement. The obligations of the bank depositary and us under the depositary agreement will be limited to performance
in good faith of our duties thereunder, and we 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 may rely upon written advice of counsel or accountants, or upon
information provided by persons presenting preferred stock for deposit, holders of depositary receipts or other persons believed to be
competent and on documents believed to be genuine.
Resignation and Removal of Bank Depositary
The bank depositary may resign
at any time by delivering to us notice of its election to do so, and we may at any time remove the bank depositary. Any such resignation
or removal will take effect upon the appointment of a successor bank depositary and its acceptance of such appointment. The successor
bank depositary must be appointed within 60 days after delivery of the notice of resignation or removal and must be a bank or trust company
meeting the requirements of the depositary agreement.
DESCRIPTION
OF UNITS
We may issue units comprised
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:
| · | 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; |
| · | any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units; |
| · | the terms of the unit agreement governing the units; |
| · | United States federal income tax considerations relevant to the units; and |
| · | 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.
PLAN
OF DISTRIBUTION
Initial Offering and Sale of Securities
Unless otherwise set forth
in a prospectus supplement accompanying this prospectus, we, and certain holders of our securities, may sell the securities being offered
hereby, from time to time, by one or more of the following methods:
| · | to or through underwriting syndicates represented by managing underwriters; |
| · | through one or more underwriters without a syndicate for them to offer and sell to the public; |
| · | through dealers or agents; and |
| · | to investors directly in negotiated sales or in competitively bid transactions. |
Offerings of securities covered
by this prospectus also may be made into an existing trading market for those securities in transactions at other than a fixed price,
either:
| · | on or through the facilities of the NASDAQ or any other securities exchange or quotation or trading service on which those securities
may be listed, quoted, or traded at the time of sale; and/or |
| · | to or through a market maker otherwise than on the securities exchanges or quotation or trading services set forth above. |
Those at-the-market offerings,
if any, will be conducted by underwriters acting as principal or agent of the Company, who may also be third-party sellers of securities
as described above. The prospectus supplement with respect to the offered securities will set forth the terms of the offering of the offered
securities, including:
| · | the name or names of any underwriters, dealers or agents; |
| · | the purchase price of the offered securities and the proceeds to us from such sale; |
| · | any underwriting discounts and commissions or agency fees and other items constituting underwriters’ or agents’ compensation,
provided that such compensation shall not exceed 8% of any offering proceeds as calculated pursuant to applicable rules of the Financial
Industry Regulatory Authority, or FINRA; |
| · | any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers; and |
| · | any securities exchange on which such offered securities may be listed. |
Any underwriter, agent or
dealer involved in the offer and sale of any series of the securities will be named in the prospectus supplement.
The distribution of the securities
may be effected from time to time in one or more transactions:
| · | at fixed prices, which may be changed; |
| · | at market prices prevailing at the time of the sale; |
| · | at varying prices determined at the time of sale; or |
Each prospectus supplement
will set forth the manner and terms of an offering of securities including:
| · | whether that offering is being made by us, or certain holders of our securities; |
| · | whether that offering is being made to underwriters or through agents or directly; |
| · | the rules and procedures for any auction or bidding process, if used; |
| · | the securities’ purchase price or initial public offering price; and |
| · | the proceeds we anticipate from the sale of the securities, if any. |
In addition, we may enter
into derivative or hedging transactions with third parties, or sell securities not covered by this prospectus to third parties in privately
negotiated transactions. If the applicable prospectus supplement indicates, in connection with such a transaction, the third parties may
sell securities covered by and pursuant to this prospectus and an applicable prospectus supplement. If so, the third party may use securities
pledged by us or borrowed from us or others to settle such sales and may use securities received from us to close out any related short
positions. We may also loan or pledge securities covered by this prospectus and an applicable prospectus supplement to third parties,
who may sell the loaned securities or, in an event of default in the case of a pledge, sell the pledged securities pursuant to this prospectus
and the applicable prospectus supplement.
Sales Through Underwriters
If underwriters are used in
the sale of some or all of the securities covered by this prospectus, the underwriters will acquire the securities for their own account.
The underwriters may resell the securities, either directly to the public or to securities dealers, at various times in one or more transactions,
including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. The obligations
of the underwriters to purchase the securities will be subject to certain conditions. Unless indicated otherwise in a prospectus supplement,
the underwriters will be obligated to purchase all the securities of the series offered if any of the securities are purchased.
Any initial public offering
price and any concessions allowed or reallowed to dealers may be changed intermittently.
Sales Through Agents
Unless otherwise indicated
in the applicable prospectus supplement, when securities are sold through an agent, the designated agent will agree, for the period of
its appointment as agent, to use its best efforts to sell the securities for our account and will receive commissions from us as will
be set forth in the applicable prospectus supplement.
Securities bought in accordance
with a redemption or repayment under their terms also may be offered and sold, if so indicated in the applicable prospectus supplement,
in connection with a remarketing by one or more firms acting as principals for their own accounts or as agents for us. Any remarketing
firm will be identified and the terms of its agreement, if any, with us and its compensation will be described in the prospectus supplement.
Remarketing firms may be deemed to be underwriters in connection with the securities remarketed by them.
If so indicated in the applicable
prospectus supplement, we may authorize agents, underwriters or dealers to solicit offers by certain specified institutions to purchase
securities at a price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery
on a future date specified in the prospectus supplement. These contracts will be subject only to those conditions set forth in the applicable
prospectus supplement, and the prospectus supplement will set forth the commissions payable for solicitation of these contracts.
Direct Sales
We may also sell offered securities
directly to institutional investors or others. In this case, no underwriters or agents would be involved. The terms of such sales will
be described in the applicable prospectus supplement.
General Information
Broker-dealers, agents or
underwriters may receive compensation in the form of discounts, concessions or commissions from us and/or the purchasers of securities
for whom such broker-dealers, agents or underwriters may act as agents or to whom they sell as principal, or both (this compensation to
a particular broker-dealer might be in excess of customary commissions).
Underwriters, dealers and
agents that participate in any distribution of the offered securities may be deemed “underwriters” within the meaning of the
Securities Act, so any discounts or commissions they receive in connection with the distribution may be deemed to be underwriting compensation.
Those underwriters and agents may be entitled, under their agreements with us, to indemnification by us against certain civil liabilities,
including liabilities under the Securities Act, or to contribution by us to payments that they may be required to make in respect of those
civil liabilities. Certain of those underwriters or agents may be customers of, engage in transactions with, or perform services for,
us or our affiliates in the ordinary course of business. We will identify any underwriters or agents, and describe their compensation,
in a prospectus supplement. Any institutional investors or others that purchase offered securities directly from us, and then resell the
securities, may be deemed to be underwriters, and any discounts or commissions received by them from us and any profit on the resale of
the securities by them may be deemed to be underwriting discounts and commissions under the Securities Act.
We will file a supplement
to this prospectus, if required, pursuant to Rule 424(b) under the Securities Act, if we enter into any material arrangement
with a broker, dealer, agent or underwriter for the sale of securities through a block trade, special offering, exchange distribution
or secondary distribution or a purchase by a broker or dealer. Such prospectus supplement will disclose:
| · | the name of any participating broker, dealer, agent or underwriter; |
| · | the number and type of securities involved; |
| · | the price at which such securities were sold; |
| · | any securities exchanges on which such securities may be listed; |
| · | the commissions paid or discounts or concessions allowed to any such broker, dealer, agent or underwriter where applicable; and |
| · | other facts material to the transaction. |
In order to facilitate the
offering of certain securities under this prospectus or an applicable prospectus supplement, certain persons participating in the offering
of those securities may engage in transactions that stabilize, maintain or otherwise affect the price of those securities during and after
the offering of those securities. Specifically, if the applicable prospectus supplement permits, the underwriters of those securities
may over-allot or otherwise create a short position in those securities for their own account by selling more of those securities than
have been sold to them by us and may elect to cover any such short position by purchasing those securities in the open market.
In addition, the underwriters
may stabilize or maintain the price of those securities by bidding for or purchasing those securities in the open market and may impose
penalty bids, under which selling concessions allowed to syndicate members or other broker-dealers participating in the offering are reclaimed
if securities previously distributed in the offering are repurchased in connection with stabilization transactions or otherwise. The effect
of these transactions may be to stabilize or maintain the market price of the securities at a level above that which might otherwise prevail
in the open market. The imposition of a penalty bid may also affect the price of securities to the extent that it discourages resales
of the securities. No representation is made as to the magnitude or effect of any such stabilization or other transactions. Such transactions,
if commenced, may be discontinued at any time.
In order to comply with the
securities laws of certain states, if applicable, the securities must be sold in such jurisdictions only through registered or licensed
brokers or dealers. In addition, in certain states, the securities may not be sold unless they have been registered or qualified for sale
in the applicable state or an exemption from the registration or qualification requirement is available and is complied with.
Rule 15c6-1 under the
Exchange Act generally requires that trades in the secondary market settle in three business days, unless the parties to any such trade
expressly agree otherwise. Your prospectus supplement may provide that the original issue date for your securities may be more than three
scheduled business days after the trade date for your securities. Accordingly, in such a case, if you wish to trade securities on any
date prior to the third business day before the original issue date for your securities, you will be required, by virtue of the fact that
your securities initially are expected to settle in more than three scheduled business days after the trade date for your securities,
to make alternative settlement arrangements to prevent a failed settlement.
This prospectus, the applicable
prospectus supplement and any applicable pricing supplement in electronic format may be made available on the Internet sites of, or through
other online services maintained by, us and/or one or more of the agents and/or dealers participating in an offering of securities, or
by their affiliates. In those cases, prospective investors may be able to view offering terms online and, depending upon the particular
agent or dealer, prospective investors may be allowed to place orders online.
Other than this prospectus,
the applicable prospectus supplement and any applicable pricing supplement in electronic format, the information on our or any agent’s
or dealer’s website and any information contained in any other website maintained by any agent or dealer:
| · | is not part of this prospectus, the applicable prospectus supplement and any applicable pricing supplement or the registration statement
of which they form a part; |
| · | has not been approved or endorsed by us or by any agent or dealer in its capacity as an agent or dealer, except, in each case, with
respect to the respective website maintained by such entity; and |
| · | should not be relied upon by investors. |
There can be no assurance
that we will sell all or any of the securities offered by this prospectus.
This prospectus may also be
used in connection with any issuance of common stock or preferred stock upon exercise of a warrant if such issuance is not exempt from
the registration requirements of the Securities Act.
In addition, we may issue
the securities as a dividend or distribution or in a subscription rights offering to our existing security holders. In some cases, we
or dealers acting with us or on our behalf may also purchase securities and reoffer them to the public by one or more of the methods described
above. 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.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to “incorporate
by reference” into this prospectus the information we have filed with the SEC, which means that we can disclose important information
to you by referring you to those documents. Any information that we file subsequently with the SEC will automatically update this prospectus.
We incorporate by reference into this prospectus the information contained in the documents listed below, which is considered to be a
part of this prospectus:
In
addition, all filings filed by the Company pursuant to the Exchange Act after the date of the initial registration statement and prior
to the effectiveness of the registration statement shall be deemed to be incorporated by reference into this prospectus, and all documents
subsequently filed after the date of this prospectus pursuant to Sections 13(a), 13(c),14 or 15(d) of the Exchange Act shall be
deemed incorporated by reference into this prospectus. The most recent information that we file with the SEC automatically updates
and supersedes older information. The information contained in any such filing will be deemed to be a part of this prospectus, commencing
on the date on which the document is filed.
You may request a copy of
the information incorporated by reference, at no cost, by writing or telephoning us at the following address:
Hanover
Bancorp, Inc.
Attention: Investor Relations
80 East Jericho Turnpike, Mineola, New York 11501
(516) 548-8500
LEGAL
MATTERS
Unless otherwise indicated
in the applicable prospectus supplement, the validity of the securities offered hereby will be passed upon for us by Windels Marx Lane &
Mittendorf, LLP, New Brunswick, New Jersey. If the validity of the securities offered hereby in connection with offerings made pursuant
to this prospectus are passed upon by counsel for the underwriters, dealers or agents, if any, such counsel will be named in the prospectus
supplement relating to such offering.
EXPERTS
Our consolidated financial
statements as of September 30, 2023 and 2022, and for each of the years in the two year period ended September 30, 2023, have
been audited by Crowe LLP, an independent registered public accounting firm, as set forth in its report thereon and incorporated herein
by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We have filed with the SEC
a registration statement on Form S-3, including exhibits, under the Securities Act with respect to the securities being offered
under this prospectus. This prospectus does not contain all of the information set forth in the registration statement. This prospectus
contains descriptions of certain agreements or documents that are exhibits to the registration statement. The statements as to the contents
of such exhibits, however, are brief descriptions and are not necessarily complete, and each statement is qualified in all respects by
reference to such agreement or document. For further information about us, please refer to the registration statement and the documents
incorporated by reference in this prospectus.
We file annual, quarterly
and special 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. The SEC’s website contains reports, proxy statements and other information
regarding issuers, such as Hanover Bancorp, Inc., that file electronically with the SEC. You may also read and copy any document
we file with the SEC at the SEC’s Public Reference Room, located at 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 its Public Reference Room. We make available free of charge through
our web site our Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, Proxy Statements
on Schedule 14A and all amendments to those reports as soon as reasonably practicable after such material is electronically filed
with or furnished to the SEC. Our website address is https://www.hanoverbank.com. Please note that our website address is provided
as an inactive textual reference only. Information contained on or accessible through our website is not part of this prospectus or the
prospectus supplement, and is therefore not incorporated by reference unless such information is otherwise specifically referenced elsewhere
in this prospectus or the prospectus supplement.
You should rely only on the
information contained or incorporated by reference in this prospectus. No one has been authorized to provide you with different information.
If anyone provides you with different or inconsistent information, you should not rely on it. We are not making an offer to sell these
securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in this prospectus,
as well as information we filed with the SEC and incorporated by reference, is accurate as of the date of those documents only. Our business,
financial condition and results of operations described in those documents may have changed since those dates.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
Expenses payable in connection
with the registration and distribution of the securities being registered hereunder, all of which will be borne by the Registrant, are
as follows. All amounts are estimates, except the Commission registration fee.
| Registration
Statement filing fee | |
$ |
_______ |
|
| Printing
fees | |
|
* |
|
| Legal
fees and expenses | |
|
* |
|
| Accounting
fees and expenses | |
|
* |
|
| Miscellaneous | |
|
* |
|
| Total | |
$ |
_______ |
|
*These fees and expenses depend on the securities
offered and the number of securities issuances and cannot be estimated at this time.
The amounts set forth above do not include expenses
of preparing and printing any accompanying prospectus supplements, listing fees, trustee fees and expenses, warrant or unit agent fees
and expenses, transfer agent fees and other expenses related to offerings of particular securities from time to time. Estimated fees and
expenses associated with future offerings will be provided in the applicable prospectus supplement.
Item
15. Indemnification of Directors and Officers.
Section 922 of the New
York Business Corporation Act provides:
(a) A corporation may
indemnify any person made, or threatened to be made, a party to an action or proceeding (other than one by or in the right of the corporation
to procure a judgment in its favor), whether civil or criminal, including an action by or in the right of any other corporation of any
type or kind, domestic or foreign, or any partnership, joint venture, trust, employee benefit plan or other enterprise, which any director
or officer of the corporation served in any capacity at the request of the corporation, by reason of the fact that he, his testator or
intestate, was a director or officer of the corporation, or served such other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise in any capacity, against judgments, fines, amounts paid in settlement and reasonable expenses, including
attorneys' fees actually and necessarily incurred as a result of such action or proceeding, or any appeal therein, if such director or
officer acted, in good faith, for a purpose which he reasonably believed to be in, or, in the case of service for any other corporation
or any partnership, joint venture, trust, employee benefit plan or other enterprise, not opposed to, the best interests of the corporation
and, in criminal actions or proceedings, in addition, had no reasonable cause to believe that his conduct was unlawful.
(b) The termination of
any such civil or criminal action or proceeding by judgment, settlement, conviction or upon a plea of nolo contendere, or its equivalent,
shall not in itself create a presumption that any such director or officer did not act, in good faith, for a purpose which he reasonably
believed to be in, or, in the case of service for any other corporation or any partnership, joint venture, trust, employee benefit plan
or other enterprise, not opposed to, the best interests of the corporation or that he had reasonable cause to believe that his conduct
was unlawful.
(c) A corporation may
indemnify any person made, or threatened to be made, a party to an action by or in the right of the corporation to procure a judgment
in its favor by reason of the fact that he, his testator or intestate, is or was a director or officer of the corporation, or is or was
serving at the request of the corporation as a director or officer of any other corporation of any type or kind, domestic or foreign,
of any partnership, joint venture, trust, employee benefit plan or other enterprise, against amounts paid in settlement and reasonable
expenses, including attorneys' fees, actually and necessarily incurred by him in connection with the defense or settlement of such action,
or in connection with an appeal therein, if such director or officer acted, in good faith, for a purpose which he reasonably believed
to be in, or, in the case of service for any other corporation or any partnership, joint venture, trust, employee benefit plan or other
enterprise, not opposed to, the best interests of the corporation, except that no indemnification under this paragraph shall be made in
respect of (1) a threatened action, or a pending action which is settled or otherwise disposed of, or (2) any claim, issue or
matter as to which such person shall have been adjudged to be liable to the corporation, unless and only to the extent that the court
in which the action was brought, or, if no action was brought, any court of competent jurisdiction, determines upon application that,
in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such portion of the settlement
amount and expenses as the court deems proper.
(d) For the purpose of
this section, a corporation shall be deemed to have requested a person to serve an employee benefit plan where the performance by such
person of his duties to the corporation also imposes duties on, or otherwise involves services by, such person to the plan or participants
or beneficiaries of the plan; excise taxes assessed on a person with respect to an employee benefit plan pursuant to applicable law shall
be considered fines; and action taken or omitted by a person with respect to an employee benefit plan in the performance of such person's
duties for a purpose reasonably believed by such person to be in the interest of the participants and beneficiaries of the plan shall
be deemed to be for a purpose which is not opposed to the best interests of the corporation.
The Registrant's Bylaws contains the following
provision:
Section 5.4. Indemnity. The Corporation shall indemnify
its directors, officers and employees to the fullest extent allowed by law, provided, however, that it shall be within the discretion
of the Board of Directors whether to advance any funds in advance of disposition of any action, suit or proceeding, and provided further
that nothing in this Section 5.4 shall be deemed to obviate the necessity of the Board of Directors to make any determination that
indemnification of any director, offices or employee is proper under the circumstances because he has met the applicable standard of conduct
set forth in the New York Business Corporation Law. Neither the amendment nor the repeal of this Section 5.4, nor the adoption of
any provision of these By-Laws or the Certificate of Incorporation of the Corporation or any other statute inconsistent with this Section 5.4,
shall eliminate or reduce the effect of this Section 5.4 in respect of any acts or omissions occurring prior to such amendment, repeal
or adoption of an inconsistent provision.
Item
16. List of Exhibits
| Exhibit | |
|
| Number | |
Description |
| 1.1 | |
Form of Underwriting Agreement for common
stock* |
| 1.2 | |
Form of Underwriting Agreement for preferred stock* |
| 1.3 | |
Form of Underwriting Agreement for debt securities* |
| 4.1 | |
Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1(i) to Registration Statement on Form S-4 filed on January 20, 2021), including Certificate of Amendment to Certificate of Incorporation designation the of Series A Convertible Perpetual Preferred Stock filed with the New York Secretary of State on October 25, 2022 (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-k filed on October 31, 2022) |
| 4.2 | |
Bylaws (incorporated by reference to Exhibit 3.2 to the
Current Report on Form 8-K filed on December 22, 2023) |
| 4.3 | |
Form of certificate of amendment of the Registrant’s Certificate of Incorporation, with respect to any preferred stock issued hereunder* |
| 4.5 | |
Form of Warrant Agreement* |
| 4.6 | |
Form of Warrant Certificate (to be included in Exhibit
4.5)* |
| 4.7 | |
Specimen of Preferred Stock Certificate* |
| 4.8 | |
Specimen of Debt Security* |
| 4.9 | |
Form of Trust Indenture** |
| 4.10 | |
Form of Senior Debt Indenture** |
| 4.11 | |
Form of Depositary Agreement* |
| 4.12 | |
Form of Depositary Receipt (to be included in Exhibit
4.11)* |
| 4.13 | |
Form of Unit Agreement* |
| 5.1 | |
Opinion of Windels Marx Lane& Mittendorf, LLP** |
| 23.1 | |
Consent of Crowe LLP** |
| 23.2 | |
Consent of Windels Marx Lane& Mittendorf LLP (included
in Exhibit 5.1) |
| 24.1 | |
Power of Attorney** |
| 25.1 | |
Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of the Trustee under the Indenture (for Debt Securities)*** |
| 25.2 | |
Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of the Trustee under the Indenture (for Subordinated Debt Securities)*** |
| 107 | |
Filing Fee Table ** |
| * | To be filed subsequently by an amendment to the Registration Statement or by a Current Report on Form 8-K
of the Registrant that is incorporated by reference in the Registration Statement or any such amendment. |
| *** | Where applicable, to be incorporated by reference to a subsequent filing in accordance with Section 305(b)(2) of
the Trust Indenture Act of 1939, as amended. |
Item
17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during
any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) to include any prospectus
required by Section 10(a)(3) of the Securities Act of 1933;
(ii) to reflect in
the prospectus any facts or event arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price
set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) to include any
material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change
to such information in the registration statement;
provided,
however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) do not apply if the registration statement is on Form S-3
or Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports
filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that
is part of the registration statement.
(2) That, for the purpose
of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration
by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for purposes
of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed
by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus
required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required
by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement
as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities
in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is
at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities
in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement
or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale
prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part
of the registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose
of determining liability of a registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:
the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to
such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will
be considered to offer or sell such securities to such purchaser:
(i) any preliminary prospectus
or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) any free writing
prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) the portion of
any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities
provided by or on behalf of the undersigned Registrant; and
(iv) any other communication
that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes
that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities
arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant
to the foregoing provisions or otherwise, the registrant has been advised that in the opinion of the SEC, 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 the registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is
against public policy as expressed in the Act, and will be governed by the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes
to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of section 310
of the Trust Indenture Act (“Act”) in accordance with the rules and regulations prescribed by the Commission under section 305(b)2
of the Act.
SIGNATURES
Pursuant to the requirements
of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Mineola, State of New York, on the 24 day of January, 2024.
| |
HANOVER
BANCORP,INC. |
| |
|
| |
By: |
/s/ Michael P. Puorro |
| |
|
Michael P. Puorro |
| |
|
Chairman and Chief Executive Officer |
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 indicated
on the 24 day of January, 2024.
| |
/s/ Michael P. Puorro |
| |
Michael P. Puorro |
| |
Chairman of the Board and Chief Executive Officer |
| |
|
| |
/s/ Lance P. Burke |
| |
Lance P. Burke |
| |
Executive Vice President and Chief Financial Officer |
| |
|
| |
/s/ Lisa A. Diiorio |
| |
Lisa A. Diiorio |
| |
First Senior Vice President, Chief Accounting Officer |
| |
|
| |
/s/ Varkey Abraham |
| |
Varkey Abraham |
| |
Director |
| |
|
| |
/s/ Robert Golden |
| |
Robert Golden |
| |
Director |
| |
|
| |
/s/ Ahron Haspel |
| |
Ahron Haspel |
| |
Director |
| |
|
| |
/s/ Michael Katz |
| |
Michael Katz |
| |
Director |
| |
|
| |
/s/ Metin Negrin |
| |
Metin Negrin |
| |
Director |
| |
|
| |
/s/ Philip Okun |
| |
Philip Okun |
| |
Director |
| |
|
| |
/s/ Elena Sisti |
| |
Elena Sisti |
| |
Director |
| |
|
| |
/s/ John Sorrenti |
| |
John Sorrenti |
| |
Director |
EXHIBIT INDEX
| Exhibit | |
|
| Number | |
Description |
| 1.1 | |
Form of Underwriting Agreement for common
stock* |
| 1.2 | |
Form of Underwriting Agreement for preferred stock* |
| 1.3 | |
Form of Underwriting Agreement for debt securities* |
| 4.1 | |
Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1(i) to Registration Statement on Form S-4 filed on January 20, 2021), including Certificate of Amendment to Certificate of Incorporation designation the of Series A Convertible Perpetual Preferred Stock filed with the New York Secretary of State on October 25, 2022 (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-k filed on October 31, 2022) |
| 4.2 | |
Bylaws (incorporated by reference to Exhibit 3.2 to the
Current Report on Form 8-K filed on December 22, 2023) |
| 4.3 | |
Form of certificate of amendment of the Registrant’s Certificate of Incorporation, with respect to any preferred stock issued hereunder* |
| 4.5 | |
Form of Warrant Agreement* |
| 4.6 | |
Form of Warrant Certificate (to be included in Exhibit
4.5)* |
| 4.7 | |
Specimen of Preferred Stock Certificate* |
| 4.8 | |
Specimen of Debt Security* |
| 4.9 | |
Form of Trust Indenture** |
| 4.10 | |
Form of Senior Debt Indenture** |
| 4.11 | |
Form of Depositary Agreement* |
| 4.12 | |
Form of Depositary Receipt (to be included in Exhibit
4.11)* |
| 4.13 | |
Form of Unit Agreement* |
| 5.1 | |
Opinion of Windels Marx Lane& Mittendorf, LLP** |
| 23.1 | |
Consent of Crowe LLP** |
| 23.2 | |
Consent of Windels Marx Lane& Mittendorf LLP (included
in Exhibit 5.1) |
| 24.1 | |
Power of Attorney** |
| 25.1 | |
Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of the Trustee under the Indenture (for Debt Securities)*** |
| 25.2 | |
Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of the Trustee under the Indenture (for Subordinated Debt Securities)*** |
| 107 | |
Filing Fee Table ** |
| * | To be filed subsequently by an amendment to the Registration Statement or by a Current Report on Form 8-K
of the Registrant that is incorporated by reference in the Registration Statement or any such amendment. |
| *** | Where applicable, to be incorporated by reference to a subsequent filing in accordance with Section 305(b)(2) of
the Trust Indenture Act of 1939, as amended. |
Exhibit 4.9
TRUST INDENTURE
HANOVER BANCORP, INC.
and
[●]
as Trustee
INDENTURE
Dated as of [●]
Providing for the Issuance of Debt Securities
CROSS-REFERENCE TABLE*
| |
|
|
| Trust Indenture Act Section |
|
Indenture Section |
| 310 (a)(1) |
|
N.A. |
| |
|
|
| (a)(2) |
|
6.13 |
| |
|
|
| (a)(3) |
|
6.13 |
| |
|
|
| (a)(4) |
|
N.A. |
| |
|
|
| (a)(5) |
|
7.01 |
| |
|
|
| (b) |
|
7.02 |
| |
|
|
| (c) |
|
7.02 |
| |
|
|
| 311 (a) |
|
7.03 |
| |
|
|
| (b) |
|
7.03 |
| |
|
|
| (c) |
|
7.03 |
| |
|
|
| 312 (a) |
|
7.03 |
| |
|
|
| (b) |
|
7.04; 1.02 |
| |
|
|
| (c) |
|
1.02 |
| |
|
|
| 313 (a) |
|
1.02 |
| |
|
|
| (b)(2) |
|
N.A. |
| |
|
|
| (c) |
|
1.02 |
| |
|
|
| (d) |
|
N.A. |
| |
|
|
| 314 (a) |
|
6.01 |
| |
|
|
| (c)(1) |
|
6.02; 1.06 |
| |
|
|
| (c)(2) |
|
6.01 |
| |
|
|
| (c)(3) |
|
6.01 |
| |
|
|
| (e) |
|
5.14 |
| |
|
|
| (f) |
|
1.01 |
| |
|
|
| 315 (a) |
|
5.12 |
| |
|
|
| (b) |
|
5.02 |
| |
|
|
| (c) |
|
N.A. |
| (d) |
|
5.08 |
| |
|
|
| (e) |
|
3.07 |
| |
|
|
| 316 (a)(last sentence) |
|
5.03 |
| |
|
|
| (a)(1)(A) |
|
5.04 |
| |
|
|
| (a)(1)(B) |
|
4.06 |
| |
|
|
| (a)(2) |
|
1.07 |
| |
|
|
| (b) |
|
N.A. |
| |
|
|
| (c) |
|
1.07 |
N.A. means not applicable
| * |
This Cross-Reference Table is not part of the Indenture. |
TABLE OF CONTENTS
| Article I. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
1 |
| Section 1.01 |
Definitions |
1 |
| Section 1.02 |
Officers’ Certificates and Opinions |
6 |
| Section 1.03 |
Form of Documents Delivered to Trustee |
6 |
| Section 1.04 |
Acts of Securityholders |
7 |
| Section 1.05 |
Notices, etc., to Trustee and Company |
8 |
| Section 1.06 |
Notice To Securityholders; Waiver |
8 |
| Section 1.07 |
Conflict with Trust Indenture Act |
8 |
| Section 1.08 |
Effect of Headings and Table of Contents |
8 |
| Section 1.09 |
Successors and Assigns |
8 |
| Section 1.10 |
Separability Clause |
8 |
| Section 1.11 |
Benefits of Indenture |
9 |
| Section 1.12 |
Governing Law |
9 |
| Section 1.13 |
Counterparts |
9 |
| Section 1.14 |
Judgment Currency |
9 |
| Section 1.15 |
Legal Holidays |
9 |
| Article II. SECURITY FORMS |
9 |
| Section 2.01 |
Forms Generally |
9 |
| Section 2.02 |
Forms of Securities |
10 |
| Section 2.03 |
Securities in Global Form |
10 |
| Section 2.04 |
Form of Trustee’s Certificate of Authentication |
10 |
| Article III. THE SECURITIES |
11 |
| Section 3.01 |
General Title; General Limitations; Issuable in Series; Terms of Particular Series |
11 |
| Section 3.02 |
Denominations and Currency |
13 |
| Section 3.03 |
Execution, Authentication and Delivery, and Dating |
14 |
| Section 3.04 |
Temporary Securities |
15 |
| Section 3.05 |
Registration, Transfer and Exchange |
16 |
| Section 3.06 |
Mutilated, Destroyed, Lost and Stolen Securities |
18 |
| Section 3.07 |
Payment of Interest; Interest Rights Preserved |
18 |
| Section 3.08 |
Persons Deemed Owners |
19 |
| Section 3.09 |
Cancellation |
19 |
| Section 3.10 |
Computation of Interest |
19 |
| Article IV. SATISFACTION AND DISCHARGE |
20 |
| Section 4.01 |
Satisfaction and Discharge of Indenture |
20 |
| Section 4.02 |
Discharge and Defeasance |
21 |
| Section 4.03 |
Covenant Defeasance |
21 |
| Section 4.04 |
Conditions To Defeasance Or Covenant Defeasance |
22 |
| Section 4.05 |
Application of Trust Money; Excess Funds |
23 |
| Section 4.06 |
Paying Agent to Repay Moneys Held |
23 |
| Section 4.07 |
Return of Unclaimed Amounts |
23 |
| Article V. REMEDIES |
24 |
| Section 5.01 |
Events of Default |
24 |
| Section 5.02 |
Acceleration of Maturity; Rescission, and Annulment |
25 |
| Section 5.03 |
Collection of Indebtedness and Suits for Enforcement by Trustee |
25 |
| Section 5.04 |
Trustee May File Proofs of Claim |
26 |
| Section 5.05 |
Trustee May Enforce Claims Without Possession of Securities |
26 |
| Section 5.06 |
Application of Money Collected |
26 |
| Section 5.07 |
Limitation on Suits |
27 |
| Section 5.08 |
Unconditional Right of Securityholders to Receive Principal, Premium, and Interest |
27 |
| Section 5.09 |
Restoration of Rights and Remedies |
27 |
| Section 5.10 |
Rights and Remedies Cumulative |
27 |
| Section 5.11 |
Delay or Omission Not Waiver |
28 |
| Section 5.12 |
Control by Securityholders |
28 |
| Section 5.13 |
Waiver of Past Defaults |
28 |
| Section 5.14 |
Undertaking for Costs |
29 |
| Section 5.15 |
Waiver of Stay or Extension Laws |
29 |
| Article VI. THE TRUSTEE |
29 |
| Section 6.01 |
Certain Duties and Responsibilities of Trustee |
29 |
| Section 6.02 |
Notice of Defaults |
30 |
| Section 6.03 |
Certain Rights of Trustee |
30 |
| Section 6.04 |
Not Responsible for Recitals or Issuance of Securities |
31 |
| Section 6.05 |
May Hold Securities |
31 |
| Section 6.06 |
Money Held in Trust |
32 |
| Section 6.07 |
Compensation and Reimbursement |
32 |
| Section 6.08 |
Disqualification; Conflicting Interests |
32 |
| Section 6.09 |
Corporate Trustee Required; Eligibility |
33 |
| Section 6.10 |
Resignation and Removal; Appointment of Successor |
33 |
| Section 6.11 |
Acceptance of Appointment by Successor |
34 |
| Section 6.12 |
Merger, Conversion, Consolidation or Succession to Business |
35 |
| Section 6.13 |
Preferential Collection of Claims Against Company |
35 |
| Section 6.14 |
Appointment of Authenticating Agent |
35 |
| Article VII. SECURITYHOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY |
37 |
| Section 7.01 |
Company to Furnish Trustee Names and Addresses of Securityholders |
37 |
| Section 7.02 |
Preservation of Information; Communications to Securityholders |
37 |
| Section 7.03 |
Reports by Trustee |
37 |
| Section 7.04 |
Reports by Company |
38 |
| Article VIII. CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER |
38 |
| Section 8.02 |
Successor Corporation Substituted |
39 |
| Article IX. SUPPLEMENTAL INDENTURES |
39 |
| Section 9.02 |
Supplemental Indentures With Consent of Securityholders |
40 |
| Section 9.03 |
Execution of Supplemental Indentures |
41 |
| Section 9.04 |
Effect of Supplemental Indentures |
41 |
| Section 9.05 |
Conformity With Trust Indenture Act |
41 |
| Section 9.06 |
Reference in Securities to Supplemental Indentures |
41 |
| Article X. COVENANTS |
42 |
| Section 10.01 |
Payment of Principal, Premium and Interest |
42 |
| Section 10.02 |
Maintenance of Office or Agency |
42 |
| Section 10.03 |
Money or Security Payments to Be Held in Trust |
42 |
| Section 10.04 |
Certificate to Trustee |
43 |
| Section 10.05 |
Corporate Existence |
43 |
| Article XI. REDEMPTION OF SECURITIES |
43 |
| Section 11.01 |
Applicability of Article |
43 |
| Section 11.02 |
Election to Redeem; Notice to Trustee |
43 |
| Section 11.03 |
Selection of Securities to be Redeemed |
43 |
| Section 11.04 |
Notice of Redemption |
44 |
| Section 11.05 |
Deposit of Redemption Price |
44 |
| Section 11.06 |
Securities Payable on Redemption Date |
44 |
| Section 11.07 |
Securities Redeemed in Part |
45 |
| Section 11.08 |
Provisions with Respect to any Sinking Funds |
45 |
| Article XII. REPAYMENT AT OPTION OF HOLDERS |
46 |
| Section 12.01 |
Applicability of Article |
46 |
| Section 12.02 |
Repayment of Securities |
46 |
| Section 12.03 |
Exercise of Option |
46 |
| Section 12.04 |
When Securities Presented for Repayment Become Due and Payable |
46 |
| Section 12.05 |
Securities Repaid in Part |
46 |
THIS INDENTURE, between
Hanover Bancorp, Inc., a New York corporation (hereinafter called the “Company”) having its principal office
at 80 E. Jericho Turnpike, Mineola, NY 11501, and [●], a banking association duly organized and existing under the laws of [●]
(hereinafter called the “Trustee”), is made and entered into as of this [●].
Recitals
of the Company
The Company has duly authorized
the execution and delivery of this Indenture to provide for the issuance of its unsecured debentures, notes, bonds, and other evidences
of indebtedness, to be issued in one or more fully registered series.
All things necessary to make
this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
Agreements
of the Parties
To set forth or to provide
for the establishment of the terms and conditions upon which the Securities (as hereinafter defined) are and are to be authenticated,
issued, and delivered, and in consideration of the premises thereof, and the purchase of Securities by the Holders (as hereinafter defined)
thereof, it is mutually covenanted and agreed as follows, for the equal and proportionate benefit of all Holders from time to time of
the Securities or of any series thereof, as the case may be:
Article I. DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01 Definitions.
For all purposes of this Indenture
and of any indenture supplemental hereto, except as otherwise expressly provided or unless the context otherwise requires:
(a) the
terms defined in this Article have the meanings assigned to them in this Article, and include the plural as well as the singular;
(b) all
other terms used herein which are defined in the Trust Indenture Act (as hereinafter defined), either directly or by reference therein,
have the meanings assigned to them therein;
(c) all
accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles
and, except as otherwise herein expressly provided, the term “generally accepted accounting principles” with respect to any
computation required or permitted hereunder shall mean such accounting principles as are generally accepted in the United States of America
at the date of such computation; and
(d) all
references in this instrument to designated “Articles”, “Sections” and other subdivisions are to the designated
Articles, Sections and other subdivisions of this instrument as originally executed. 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.
(e) the
following terms will have the meanings set forth below:
“Act”,
when used with respect to any Securityholder (as hereinafter defined), has the meaning specified in Section 1.04.
“Affiliate”
of any specified Person (as hereinafter defined) means any other Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect
to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract, or otherwise; and the terms “controlling” and “controlled” have
meanings correlative to the foregoing.
“Authenticating Agent”
means any Person authorized by the Trustee to authenticate Securities of one or more series under Section 6.14.
“Authentication Order”
has the meaning specified in Section 3.03.
“Board of Directors”
means (i) the board of directors of the Company, (ii) any duly authorized committee of that board, or (iii) any officer,
director, or authorized representative of the Company, in each case duly authorized by such Board to act hereunder.
“Board Resolution”
means a copy of a resolution certified by the secretary or an assistant secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Business Day”
means (except, with respect to any particular series of Securities, as may be otherwise provided in the form of such Securities) any day
other than a Saturday or Sunday that is neither a legal holiday nor a day on which banking institutions are authorized or required by
law, regulation, or executive order to be closed.
“Capital Stock”
means, with respect to any Person, any capital stock (including preferred stock), shares, interests, participations or other ownership
interests (however designated) of such Person and any rights (other than debt securities convertible or exchangeable for corporate stock),
warrants or options to purchase any thereof.
“Commission”
means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934,
or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties on such date.
“Company”
means Hanover Bancorp, Inc., unless and until a successor corporation shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter “Company” shall mean such successor corporation.
“Company Request”,
“Company Order”, and “Company Consent” mean, respectively, a written request, order, or consent
signed in the name of the Company by the chairman of the Board of Directors, the chief executive officer, the chief financial officer,
the treasurer, the controller, or by any other officer or officers of the Company pursuant to an applicable Board Resolution, and delivered
to the Trustee.
“Corporate Trust
Office” means the office of the Trustee at which at any particular time its corporate trust business shall be administered,
which office at the date hereof is located at [●].
“Corporation”
means a corporation, association, company, joint-stock company, limited liability company or business trust.
“Covenant Defeasance”
has the meaning specified in Section 4.03.
“Defaulted Interest”
has the meaning specified in Section 3.07.
“Defeasance”
has the meaning specified in Section 4.02.
“Depositary”
means with respect to the Securities of any series issuable or issued in whole or in part in global form, the Person designated as Depositary
by the Company pursuant to Section 3.01, unless and 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 Securities of that series.
“Equivalent Government
Securities” means, in relation to Securities denominated in a currency other than U.S. dollars, securities of the government
that issued the currency in which such Securities are denominated or securities of government agencies backed by the full faith and credit
of such government.
“Event of Default”
has the meaning specified in Article 5.
“Holder”,
“Securityholder” and “Holder of Securities” means a Person in whose name a Security is registered
in the Security Register (as hereinafter defined).
“Indebtedness”
with respect to any Person means (1) any liability of such Person (a) for borrowed money, or (b) evidenced by a bond, note,
debenture or similar instrument (including purchase money obligations but excluding Trade Payables), or (c) for the payment of money
relating to a lease that is required to be classified as a capitalized lease obligation in
accordance with generally accepted accounting principles; (2) mandatorily redeemable preferred or preference stock of a Subsidiary
held by Persons other than the Company or a Subsidiary; (3) any liability of others described in the preceding clause (1) that
such Person has guaranteed, that is recourse to such Person or that is otherwise such Person’s legal liability; and (4) any
amendment, supplement, modification, deferral, renewal, extension or refunding of any liability of the types referred to in clauses (1),
(2) and (3) above.
“Indenture”
or “this Indenture” means this instrument as originally executed or as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the
terms of any particular series of Securities established as contemplated by Section 3.01.
“Interest Payment
Date”, when used with respect to any series of Securities, means any date on which an installment of interest on those Securities
is scheduled to be paid.
“Maturity”,
when used with respect to any Security, means the date on which the principal amount outstanding under such Security or an installment
of principal amount outstanding under such Security becomes due and payable, as therein or herein provided, whether on the Scheduled Maturity
Date (as hereinafter defined), by declaration of acceleration, call for redemption, or otherwise.
“Officers’
Certificate” means a certificate signed by any two of the chairman of the Board of Directors, the chief executive officer, the
president, any vice president, the treasurer or by any other officer or officers of the Company pursuant to an applicable Board Resolution,
and delivered to the Trustee.
“Opinion of Counsel”
means a written opinion of counsel to the Company, which counsel may be an employee of the Company or other counsel who shall be reasonably
acceptable to the Trustee.
“Original Issue Discount
Security” means any Security which is initially sold at a discount from the principal amount thereof and the terms of which
provide that upon redemption or acceleration of the Maturity thereof, an amount less than the principal amount thereof would become due
and payable.
“Outstanding”,
when used with respect to any particular Securities or to the Securities of any particular series means, as of the date of determination,
all such Securities theretofore authenticated and delivered under this Indenture, except:
(a) such Securities theretofore
canceled by the Trustee or delivered by the Company to the Trustee for cancellation;
(b) such Securities,
or portions thereof, for whose payment or redemption money in the necessary amount has been theretofore deposited in trust with the Trustee
or with any Paying Agent (as hereinafter defined) other than the Company, or, if the Company shall act as its own Paying Agent, has been
set aside and segregated in trust by the Company; provided, in any case, that if such Securities are to be redeemed prior to their Scheduled
Maturity Date, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee
has been made; and
(c) such Securities in
exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, or which shall have
been paid, in each case, pursuant to the terms of Section 3.06 (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 Company).
In determining whether the
Holders of the requisite principal amount of such Securities Outstanding have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, the principal amount of any Original Issue Discount Security that shall be deemed to be Outstanding 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. In determining whether the Holders of the requisite principal amount of such Securities Outstanding have given
a direction concerning the time, method, and place of conducting any proceeding for any remedy available to the Trustee, or concerning
the exercise of any trust or power conferred upon the Trustee under this Indenture, or concerning a consent on behalf of the Holders of
any series of Securities to the waiver of any past default and its consequences, Securities owned by the Company, any other obligor upon
the Securities, or any Affiliate of the Company or such other obligor shall be disregarded and deemed not to be Outstanding. In determining
whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, or waiver,
only Securities which a Responsible Officer assigned to the corporate trust department of the Trustee knows to be owned by the Company
or any other obligor upon the Securities or any Affiliate of the Company or such other obligor 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 to act as owner with respect to such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or such other obligor.
“Paying Agent”
means, with respect to any Securities, any Person appointed by the Company to distribute amounts payable by the Company on such Securities.
If at any time there shall be more than one such Person, “Paying Agent” as used with respect to the Securities of any particular
series shall mean the Paying Agent with respect to Securities of that series.
“Person”
means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, or
government, or any agency or political subdivision thereof.
“Place of Payment”
means with respect to any series of Securities issued hereunder the city or political subdivision so designated with respect to the series
of Securities in question in accordance with the provisions of Section 3.01.
“Predecessor Securities”
of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular
Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.06 in lieu of a lost,
destroyed, mutilated, or stolen Security shall be deemed to evidence the same debt as the lost, destroyed, mutilated, or stolen Security.
“Record Date”
means any date as of which the Holder of a Security will be determined for any purpose described herein, such determination to be made
as of the close of business on such date by reference to the Security Register.
“Redemption Date”,
when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
“Redemption Price”,
when used with respect to any Security to be redeemed, means the price specified in the Security at which it is to be redeemed pursuant
to this Indenture.
“Repayment Date”,
when used with respect to any Security to be repaid, means the date fixed for such repayment pursuant to such Security.
“Repayment Price”,
when used with respect to any Security to be repaid, means the price at which it is to be repaid pursuant to such Security.
“Responsible Officer”,
when used with respect to the Trustee, shall mean an officer or assistant officer of the Trustee in the Corporate Trust Office, having
direct responsibility for the administration of this Indenture, and also, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject.
“Scheduled Maturity
Date”, when used with respect to any Security, means the date specified in such Security as the date on which all outstanding
principal and interest will be due and payable.
“Security”
or “Securities” means any note or notes, bond or bonds, debenture or debentures, or any other evidences of indebtedness,
as the case may be, of any series authenticated and delivered from time to time under this Indenture.
“Security Register”
shall have the meaning specified in Section 3.05.
“Security Registrar”
means the Person who maintains the Security Register, which Person shall be the Trustee unless and until a successor Security Registrar
is appointed by the Company.
“Senior Indebtedness”
means all obligations or indebtedness of, or guaranteed or assumed by, the Company, whether or not represented by bonds, debentures notes
or similar instruments, for borrowed money, and any amendments, renewals, extensions, modifications and refundings of any such obligations
or indebtedness, unless in the instrument creating or evidencing any such indebtedness or obligations or pursuant to which the same is
outstanding it is specifically stated, at or prior to the time the Company becomes liable in respect thereof, that any such obligation
or indebtedness or such amendment, renewal, extension, modification and refunding thereof is not Senior Indebtedness.
“Significant Subsidiary”
means each Subsidiary which is a “significant subsidiary” as defined in Rule 1-02(w) of Regulation S-X, as
amended or modified and in effect from time to time.
“Special Record Date”
for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.07.
“Specified Currency”
has the meaning specified in Section 3.01.
“Subsidiary”
means any corporation, partnership or other entity of which at the time of determination the Company owns or controls directly or indirectly
more than 50% of the shares of voting stock or equivalent interest.
“Trade Payables”
means accounts payable or any other Indebtedness or monetary obligations to trade creditors created or assumed in the ordinary course
of business in connection with the obtaining of materials, finished products, inventory or services.
“Trust Indenture
Act” or “TIA” means the Trust Indenture Act of 1939, as in force as of the date hereof, except as provided
in Section 9.05.
“Trustee”
means the party named as such above until a successor becomes such pursuant to this Indenture and thereafter means or includes each party
who is then a trustee hereunder, and if at any time there is more than one such party, “Trustee” as used with respect to the
Securities of any series means the Trustee with respect to Securities of that series. If Trustees with respect to different series of
Securities are trustees under this Indenture, nothing herein shall constitute the Trustees co-trustees of the same trust, and each Trustee
shall be the trustee of a trust separate and apart from any trust administered by any other Trustee with respect to a different series
of Securities.
“U.S. Government
Obligations” means (i) securities that are direct obligations of the United States of America, the payment of which is
unconditionally guaranteed by the full faith and credit of the United States of America and (ii) securities that are obligations
of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America, the payment of which
is unconditionally guaranteed by the full faith and credit of the United States of America, and also includes depository receipts issued
by a bank or trust company as custodian with respect to any of the securities described in the preceding clauses (i) and (ii), and
any payment of interest or principal payable under any of the securities described in the preceding clauses (i) and (ii) that
is held by such custodian for the account of the holder of a depository receipt, provided that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder of such depository receipt, or from any amount received
by the custodian in respect of such securities, or from any specific payment of interest or principal payable under the securities evidenced
by such depository receipt.
“Voting Stock”,
as applied to the stock of any corporation, means stock of any class or classes (however designated), the outstanding shares of which
have, by the terms thereof, ordinary voting power to elect a majority of the members of the board of directors (or other governing body)
of such corporation, other than stock having such power only by reason of the happening of a contingency.
Section 1.02 Officers’
Certificates and Opinions.
Every Officers’ Certificate,
Opinion of Counsel, and other certificate or opinion to be delivered to the Trustee under this Indenture with respect to any action to
be taken by the Trustee (except for the Officers’ Certificate required by Section 10.04) shall include the following:
(a) a
statement that each individual signing such certificate or opinion has read all covenants and conditions of this Indenture relating to
such proposed action, including the definitions herein relating thereto;
(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 each such individual, he or she has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(d) a
statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 1.03 Form of
Documents Delivered to Trustee.
In any case where several
matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but
one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to the other matters,
and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion
of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations
by, legal counsel, unless such officer knows that any such certificate, opinion, or representation is erroneous. Any opinion of counsel
for the Company may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer
or officers of the Company, unless such counsel knows that any such certificate, opinion, or representation is erroneous.
Where any Person is required
to make, give, or execute two or more applications, requests, consents, certificates, statements, opinions, or other instruments under
this Indenture, such instruments may, but need not, be consolidated and form a single instrument.
Section 1.04 Acts
of Securityholders.
(a) Any
request, demand, authorization, direction, notice, consent, waiver, or other action provided by this Indenture to be given or taken by
Securityholders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Securityholders
in person or by an 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 and (if expressly required by the applicable terms of this Indenture)
to the Company. If any Securities are denominated in coin or currency other than that of the United States, then for the purposes of determining
whether the Holders of the requisite principal amount of Securities have taken any action as herein described, the principal amount of
such Securities shall be deemed to be that amount of United States dollars that could be obtained for such principal amount on the basis
of the spot rate of exchange into United States dollars for the currency in which such Securities are denominated (as evidenced to the
Trustee by a certificate provided by a financial institution, selected by the Company, that maintains an active trade in the currency
in question, acting as conversion agent) as of the date the taking of such action by the Holders of such requisite principal amount is
evidenced to the Trustee as provided in the immediately preceding sentence. Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the “Act” of the Securityholders signing such instrument
or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose
of this Indenture and (subject to Section 6.01) conclusive in favor of the Trustee and the Company, if made in the manner provided
in this Section.
(b) The
fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness to such execution
or by the certificate of any notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by an officer of a corporation or
a member of a partnership, on behalf of such corporation or partnership, such certificate or affidavit shall also constitute sufficient
proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the person executing
the same, may also be proved in any other manner which the Trustee deems sufficient.
(c) The
ownership of Securities shall for all purposes be determined by reference to the Security Register, as such register shall exist as of
the applicable date.
(d) If
the Company shall solicit from the Holders any request, demand, authorization, direction, notice, consent, waiver or other action,
the Company may, at its option, by Board Resolution, fix in advance a Record Date for the determination of Holders entitled to give
such request, demand, authorization, direction, notice, consent, waiver or other action, but the Company shall have no obligation to
do so. If such Record Date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other action may be
given before or after such Record Date, but only the Holders of record at the close of business on such Record Date shall be deemed
to be Holders for the purpose of determining whether Holders of the requisite proportion of Securities Outstanding have authorized
or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other action, and for that
purpose the Securities Outstanding shall be computed as of such Record Date; provided that no such authorization, agreement or
consent by the Holders on such Record Date shall be deemed effective unless it shall become effective pursuant to the provisions of
this Indenture not later than six months after such Record Date.
(e) Any
request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Security shall bind each subsequent
Holder of such Security, and each Holder of any Security issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof, with respect to anything done or suffered to be done by the Trustee or the Company in reliance upon such action, whether
or not notation of such action is made upon such Security.
Section 1.05 Notices, etc.,
to Trustee and Company.
Any request, order, authorization,
direction, consent, waiver, or other action to be taken by the Trustee, the Company, or the Securityholders hereunder (including any Authentication
Order), and any notice to be given to the Trustee or the Company with respect to any action taken or to be taken by the Trustee, the Company,
or the Securityholders hereunder, shall be sufficient if made in writing and:
(a) (if
to be furnished or delivered to or filed with the Trustee by the Company or any Securityholder) delivered to the Trustee at its Corporate
Trust Office, or
(b) (if
to be furnished or delivered to the Company by the Trustee or any Securityholder, and except as otherwise provided in Section 5.01(d) and,
in the case of a request for repayment, except as specified in the Security carrying the right to repayment) mailed to the Company, first-class
postage prepaid, at its principal office (as specified in the first paragraph of this instrument), Attention: Chief Financial Officer,
or at any other address hereafter furnished in writing by the Company to the Trustee.
Section 1.06 Notice
To Securityholders; Waiver.
Where this Indenture or any
Security provides for notice to Securityholders of any event, such notice shall be sufficiently given (unless otherwise expressly provided
herein or in such Security) if in writing and mailed, first-class postage prepaid, to each Securityholder affected by such event, at his
or her address as it appears in the Security Register as of the applicable Record Date, not later than the latest date or earlier than
the earliest date prescribed by this Indenture or such Security for the giving of such notice. In any case where notice to Securityholders
is given by mail, neither the failure to mail such notice nor any defect in any notice so mailed to any particular Securityholder shall
affect the sufficiency of such notice with respect to other Securityholders. Where this Indenture or any Security 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 Securityholders 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.
In case, by reason of the
suspension of regular mail service as a result of a strike, work stoppage or otherwise, it shall be impractical to mail notice of
any event to any Securityholder when such notice is required to be given pursuant to any provision of this Indenture or the applicable
Security, then any method of notification as shall be satisfactory to the Trustee and the Company shall be deemed to be sufficient for
the giving of such notice.
Section 1.07 Conflict
with Trust Indenture Act.
If any provision hereof limits,
qualifies or conflicts with another provision hereof which is required to be included in this Indenture by any of the provisions of the
TIA, such required provision shall control.
Section 1.08 Effect
of Headings and Table of Contents.
The Article and Section headings
herein and the Table of Contents hereof are for convenience only and shall not affect the construction of any provision of this Indenture.
Section 1.09 Successors
and Assigns.
All covenants and agreements
in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
Section 1.10 Separability
Clause.
In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 1.11 Benefits
of Indenture.
Nothing in this Indenture
or in any Securities, express or implied, shall give to any Person, other than the parties hereto, their successors hereunder, the Authenticating
Agent, the Security Registrar, any Paying Agent, and the Holders of Securities (or such of them as may be affected thereby), any benefit
or any legal or equitable right, remedy or claim under this Indenture.
Section 1.12 Governing
Law.
This Indenture shall be governed
by and construed in accordance with the laws of the State of New York.
Section 1.13 Counterparts.
This instrument may be executed
in any number of counterparts, each of which when so executed shall be deemed to be an original, but all of which shall together constitute
but one and the same instrument.
Section 1.14 Judgment
Currency.
The Company agrees, to the
fullest extent that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court
with respect to the Securities of any series it is necessary to convert the sum due in respect of the principal, premium, if any, or interest,
if any, payable with respect to such Securities into a currency in which a judgment can be rendered (the “Judgment Currency”),
the rate of exchange from the currency in which payments under such Securities is payable (the “Required Currency”)
into the Judgment Currency shall be the highest bid quotation (assuming European-style quotation—i.e., Required Currency
per Judgment Currency) received by the Company from three recognized foreign exchange dealers in the City of New York for the purchase
of the aggregate amount of the judgment (as denominated in the Judgment Currency) on the Business Day preceding the date on which a final
unappealable judgment is rendered, for settlement on such payment date, and at which the applicable dealer timely commits to execute a
contract, and (b) the Company’s obligations under this Indenture to make payments in the Required Currency (i) shall not
be discharged or satisfied by any tender, or by any recovery pursuant to any judgment (whether or not entered in accordance with the preceding
clause (a)), in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual
receipt by the judgment creditor of the full amount of the Required Currency expressed to be payable in respect of such payments, (ii) shall
be enforceable as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any,
by which such actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable, and (iii) shall
not be affected by judgment being obtained for any other sum due under this Indenture.
Section 1.15 Legal
Holidays.
In any case where any Interest
Payment Date, Redemption Date, Repayment Date or Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding
any other provision of this Indenture or of the Securities) payment of interest or principal (and premium, if any) need not be made at
such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and
effect as if made on the Interest Payment Date, Redemption Date, Repayment Date or at Maturity, provided that no interest shall
accrue for the period from and after such Interest Payment Date, Redemption Date, Repayment Date or Maturity, as the case may
be.
Article II. SECURITY
FORMS
Section 2.01 Forms
Generally.
The Securities of each series
shall have such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture and
may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon, as may be required to
comply with the rules of any securities exchange, or as may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities. Any portion of the text of any Security may be set forth on the reverse
thereof, with an appropriate reference thereto on the face of the Security.
The definitive Securities,
if any, shall be printed, lithographed or engraved or produced by any combination of these methods on steel engraved borders or may be
produced in any other manner permitted by the rules of any securities exchange, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
Section 2.02 Forms
of Securities.
Each Security shall be in
one of the forms approved from time to time by or pursuant to any Board Resolution, or established in one or more indentures supplemental
hereto. Prior to the delivery to the Trustee for authentication of any Security in any form approved by or pursuant to a Board Resolution,
the Company shall deliver to the Trustee a copy of such Board Resolution, together with a true and correct copy of the form of Security
which has been approved thereby, or, if a Board Resolution authorizes a specific officer or officers to approve a form of Security, together
with a certificate of such officer or officers approving the form of Security attached thereto, provided, however,
that with respect to all Securities issued pursuant to the same Board Resolution, the required copy of such Board Resolution, together
with the appropriate attachment, need be delivered only once. Any form of Security approved by or pursuant to a Board Resolution must
be acceptable as to form to the Trustee, such acceptance to be evidenced by the Trustee’s authentication of Securities in that form
or by a certificate signed by a Responsible Officer of the Trustee and delivered to the Company.
Section 2.03 Securities
in Global Form.
If Securities of a series
are issuable in whole or in part in global form, the global security representing such Securities may provide that it shall represent
the aggregate amount of Outstanding Securities from time to time endorsed thereon and may also provide that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced to reflect exchanges or increased to reflect the issuance of additional
Securities. Any endorsement of a Security in global form to reflect the amount (or any increase or decrease in the amount) of Outstanding
Securities represented thereby shall be made in such manner and by such Person or Persons as shall be specified therein or in the Authentication
Order delivered to the Trustee pursuant to Section 3.03 hereof.
Section 2.04 Form of
Trustee’s Certificate of Authentication.
The form of Trustee’s
Certificate of Authentication for any Security issued pursuant to this Indenture shall be substantially as follows:
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities
of the series designated therein referred to in the within-mentioned Indenture.
[●], as Trustee,
Article III. THE
SECURITIES
Section 3.01 General
Title; General Limitations; Issuable in Series; Terms of Particular Series.
(a) The
aggregate principal amount of Securities that may be authenticated, delivered, and Outstanding at any time under this Indenture is not
limited.
(b) The
Securities may be issued in one or more series in such aggregate principal amount as may from time to time be authorized by the Board
of Directors. All Securities of a series issued under this Indenture shall in all respects be equally and ratably entitled to the benefits
hereof, without preference, priority, or distinction on account of the actual time of the authentication and delivery or Scheduled Maturity
Date thereof.
(c) Each
series of Securities shall be created either by or pursuant to one or more Board Resolutions, by an Officers’ Certificate or by
one or more indentures supplemental hereto. Any such Board Resolution or supplemental indenture (or, in the case of a series of Securities
created pursuant to a Board Resolution, any officer or officers authorized by such Board Resolution) shall establish the terms of any
such series of Securities, including the following (as and to such extent as may be applicable):
| (1) | the title of such series; |
| (2) | the limit, if any, upon the aggregate principal amount or issue price of the Securities of such series; |
| (3) | the issue date or issue dates of the Securities of such series; |
| (4) | the Scheduled Maturity Date of the Securities of such series; |
| (5) | the place or places where the principal, premium, if any, interest, if any, and additional amounts, if
any, payable with respect to the Securities of such series shall be payable; |
| (6) | whether the Securities of such series will be issued at par or at a premium over or a discount from their
face amount; |
| (7) | the rate or rates (which may be fixed or variable) at which the Securities of such series shall bear interest,
if any, and, if applicable, the method by which such rate or rates may be determined; |
| (8) | the date or dates (or the method by which such date or dates may be determined) from which interest, if
any, shall accrue, and the Interest Payment Dates on which such interest shall be payable; |
| (9) | the rights, if any, to defer payments of interest on the Securities by extending the interest payment
periods and the duration of such extension; |
| (10) | the period or periods within which, the Redemption Price(s) or Repayment Price(s) at which,
and any other terms and conditions upon which the Securities of such series may be redeemed or repaid, in whole or in part, by the Company; |
| (11) | the obligation, if any, of the Company to redeem, repay, or purchase any of the Securities of such series
pursuant to any sinking fund, mandatory redemption, purchase obligation, or analogous provision at the option of a Holder thereof, and
the period or periods within which, the Redemption Price(s) or Repayment Price(s) or other price or prices at which, and any
other terms and conditions upon which the Securities of such series shall be redeemed, repaid, or purchased, in whole or in part, pursuant
to such obligation; |
| (12) | the issuance of the Securities of such series in whole or in part in global form and, if so, the identity
of the Depositary for such global security and the terms and conditions, if any, upon which interests in the Securities represented by
such global security may be exchanged, in whole or in part, for the individual Securities represented thereby (if other than as provided
in Section 3.05); |
| (13) | whether such securities are subordinated securities and if so, the provisions for such subordination; |
| (14) | the denominations in which the Securities of such series will be issued (which may be any denomination
as set forth in the terms of such Securities) if other than U.S. $1,000 or an integral multiple thereof; |
| (15) | whether and under what circumstances additional amounts on the Securities of such series shall be payable
in respect of any taxes, assessments, or other governmental charges withheld or deducted and, if so, whether the Company will have the
option to redeem such Securities rather than pay such additional amounts; |
| (16) | the basis upon which interest shall be calculated; |
| (17) | if the Securities of such series are to be issuable in definitive form (whether upon original issue or
upon exchange of a temporary Security for a definitive Security of such series) only upon receipt of certain certificates or other documents
or upon satisfaction of other conditions, then the form and terms of such certificates, documents, and/or conditions; |
| (18) | the exchange or conversion of the Securities of that series, whether or not at the option of the
Holders thereof, for or into new Securities of a different series or for or into any other securities which may include shares of
Capital Stock of the Company or any Subsidiary of the Company or securities directly or indirectly convertible
into or exchangeable for any such shares or securities of entities unaffiliated with the Company or any Subsidiary of the Company; |
| (19) | if other than U.S. dollars, the foreign or composite currency or currencies (each such currency a “Specified
Currency”) in which the Securities of such series shall be denominated and in which payments of principal, premium, if any,
interest, if any, or additional amounts, if any, payable with respect to such Securities shall or may be payable; |
| (20) | if the principal, premium, if any, interest, if any, or additional amounts, if any, payable with respect
to the Securities of such series are to be payable in any currency other than that in which the Securities are stated to be payable, whether
at the election of the Company or of a Holder thereof, the period or periods within which, and the terms and conditions upon which, such
election may be made; |
| (21) | if the amount of any payment of principal, premium, if any, interest, if any, or other sum payable with
respect to the Securities of such series may be determined by reference to the relative value of one or more Specified Currencies, commodities,
securities, or instruments, the level of one or more financial or non-financial indices, or any other designated factors or formulas,
the manner in which such amounts shall be determined; |
| (22) | the exchange of Securities of such series, at the option of the Holders thereof, for other Securities
of the same series of the same aggregate principal amount of a different authorized kind or different authorized denomination or denominations,
or both; |
| (23) | the appointment by the Trustee of an Authenticating Agent in one or more places other than the Corporate
Trust Office of the Trustee, with power to act on behalf of the Trustee, and subject to its direction, in the authentication and delivery
of the Securities of such series; |
| (24) | any trustees, depositaries, paying agents, transfer agents, exchange agents, conversion agents, registrars,
or other agents with respect to the Securities of such series if other than the Trustee, Paying Agent and Security Registrar named herein; |
| (25) | the portion of the principal amount of Securities of such series, if other than the principal amount thereof,
that shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 5.02 or provable in bankruptcy
pursuant to Section 5.04; |
| (26) | any Event of Default with respect to the Securities of such series, if not set forth herein, or any modification
of any Event of Default set forth herein with respect to such series; |
| (27) | any covenant solely for the benefit of the Securities of such series; |
| (28) | the inapplicability of Section 4.02 and Section 4.03 of this Indenture to the Securities of
such series and if Section 4.03 is applicable, the covenants subject to Covenant Defeasance under Section 4.03; and |
| (29) | any other terms of the securities of such series (which terms shall not be inconsistent with the provisions
of this Indenture, but which may modify or delete any provision of this Indenture insofar as it applies to such series). |
If all of the Securities issuable
by or pursuant to any Board Resolution are not to be issued at one time, it shall not be necessary to deliver the Officers’ Certificate
and Opinion of Counsel required by Section 3.03 hereof at the time of issuance of each such Security, but such Officers’ Certificate
and Opinion of Counsel shall be delivered at or before the time of issuance of the first such Security.
If any series of Securities
shall be established by action taken pursuant to any Board Resolution, the execution by the officer or officers authorized by such Board
Resolution of an Authentication Order (as defined in Section 3.03 below) with respect to the first Security of such series to be
issued, and the delivery of such Authentication Order to the Trustee at or before the time of issuance of the first Security of such series,
shall constitute a sufficient record of such action. Except as otherwise permitted by Section 3.03, if all of the Securities of any
such series are not to be issued at one time, the Company shall deliver an Authentication Order with respect to each subsequent issuance
of Securities of such series, but such Authentication Orders may be executed by any authorized officer or officers of the Company, whether
or not such officer or officers would have been authorized to establish such series pursuant to the aforementioned Board Resolution.
Unless otherwise provided
by or pursuant to the Board Resolution or supplemental indenture creating such series (i) a series may be reopened for issuances
of additional Securities of such series, and (ii) all Securities of the same series shall be substantially identical, except for
the initial Interest Payment Date, issue price, initial interest accrual date and the amount of the first interest payment.
The form of the Securities
of each series shall be established in a supplemental indenture or by or pursuant to the Board Resolution creating such series. The Securities
of each series shall be distinguished from the Securities of each other series in such manner as the Board of Directors or its authorized
representative or representatives may determine.
Unless otherwise provided
with respect to Securities of a particular series, the Securities of any series may only be issuable in registered form, without coupons.
Section 3.02 Denominations
and Currency.
The Securities of each series
shall be issuable in such denominations and currency as shall be provided in the provisions of this Indenture or by or pursuant to the
Board Resolution or supplemental indenture creating such series. In the absence of any such provisions with respect to the Securities
of any series, the Securities of that series shall be issuable only in fully registered form in minimum denominations of U.S. $1,000
and any integral multiple thereof.
Section 3.03 Execution,
Authentication and Delivery, and Dating.
The Securities shall be executed
on behalf of the Company by the president, any vice president, the treasurer or any assistant treasurer and attested by the secretary
or any one of its assistant secretaries, under its corporate seal. The signature of any of these officers on the Securities may be manual
or facsimile. The seal of the Company, if set forth thereon, may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted, or otherwise reproduced on the Securities. Typographical and other minor errors or defects in any such reproduction of the
seal or any such signature shall not affect the validity or enforceability of any Security that has been duly authenticated and delivered
by the Trustee.
Unless otherwise provided
in the form of Security for any series, all Securities shall be dated the date of their authentication.
Securities bearing the manual
or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding
that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did
not hold such offices at the date of such Securities.
At any time and from time
to time after the execution and delivery of this Indenture, the Company may deliver Securities to the Trustee for authentication, together
with a Company Order for authentication and delivery (such Order an “Authentication Order”) with respect to such
Securities, and the Trustee shall, upon receipt of such Authentication Order, in accordance with procedures acceptable to the Trustee
set forth in the Authentication Order, and subject to the provisions hereof, authenticate and deliver such Securities to such recipients
as may be specified from time to time pursuant to such Authentication Order. The material terms of such Securities shall be determinable
by reference to such Authentication Order and procedures. If provided for in such procedures, such Authentication Order may authorize
authentication and delivery of such Securities pursuant to oral instructions from the Company 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 the provisions of Section 6.01 hereof)
shall be fully protected in conclusively relying upon:
| (1) | an executed supplemental indenture, if any; |
| (2) | an Officers’ Certificate, certifying as to the authorized form or forms and terms of such Securities
and that no Event of Default with respect to any of the Securities shall have occurred and be continuing or would be caused by such additional
issuance; and |
| (3) | an Opinion of Counsel, stating that: |
| (a) | the form or forms and terms of such Securities have been established by and in conformity with the provisions
of this Indenture; provided that if all such Securities are not to be issued at the same time, such Opinion of Counsel
may state that such terms will be established in conformity with the provisions of this Indenture, subject to any conditions specified
in such Opinion of Counsel; |
| (b) | such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner
and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to bankruptcy, insolvency, moratorium, reorganization, and other laws of general applicability
relating to or affecting the enforcement of creditors’ rights and to general principles of equity; and |
| (c) | that the Company has complied with all covenants and conditions precedent, if any, set forth in the Indenture
and any supplemental Indenture thereto relating to the authentication, execution and delivery of the Securities. |
If the authentication and
delivery relates to a new series of Securities created by an indenture supplemental hereto, such Officers’ Certificate and Opinion
of Counsel shall also state that all conditions precedent to the execution of the supplemental indenture with respect to that series of
Securities have been complied with, the Company has the power to execute and deliver such supplemental indenture and has taken all necessary
action for those purposes and any such supplemental indenture has been duly executed and validly delivered and constitutes the legal,
valid and binding obligation of the Company enforceable in accordance with its terms.
Notwithstanding the foregoing,
if all Securities issuable by or pursuant to a Board Resolution or supplemental indenture are not to be originally issued at one time,
it shall not be necessary to deliver the Officers’ Certificate or Opinion of Counsel otherwise required pursuant to this paragraph
at or prior to the time of authentication of each such Security if such documents are delivered at or prior to the time of authentication
upon original issuance of the first such Security to be issued. After the original issuance of the first such Security to be issued, any
separate request by the Company that the Trustee authenticate such Securities for original issuance will be deemed to be a certification
by the Company that it is in compliance with all conditions precedent provided for in this Indenture relating to the authentication and
delivery of such Securities.
The Trustee shall not be required
to authenticate such Securities if the issue thereof will adversely affect the Trustee’s own rights, duties, or immunities under
the Securities and this Indenture.
If the Company shall
establish pursuant to Section 3.01 that Securities of a series may be issued in whole or in part in global form, then the
Company shall execute, and the Trustee shall (in accordance with this Section 3.03 and the Authentication Order with respect to
such series) authenticate and deliver, one or more Securities in global form that (i) shall represent and shall be denominated
in an aggregate amount equal to the aggregate principal amount of the Outstanding Securities of such series to be represented by
such one or more Securities in global form, (ii) shall be registered, in the name of the Depositary for such Security or
Securities in global form, or in the name of a nominee of such Depositary, (iii) shall be delivered to such Depositary or
pursuant to such Depositary’s instruction, and (iv) shall bear a legend substantially as follows: “Unless and until
it is exchanged in whole or in part for Securities in certificated 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.”
Each Depositary designated pursuant to Section 3.01 for a Security in global form 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.
No Security shall be entitled
to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee by manual signature of an authorized officer, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder.
Section 3.04 Temporary
Securities.
Pending the preparation of
definitive Securities of any series, the Company may execute, and, upon receipt of the documents required by Sections 2.02, 3.01
and 3.03 hereof, together with an Authentication Order, the Trustee shall authenticate and deliver, temporary Securities of such series
that are printed, lithographed, typewritten, mimeographed, or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued in registered form, without coupons, and with such appropriate insertions,
omissions, substitutions, and other variations as the officers executing such Securities may determine, as evidenced by their execution
of such Securities. In the case of Securities of any series for which a temporary Security may be issued in global form, such temporary
global security shall represent all of the Outstanding Securities of such series and tenor.
Except in the case of temporary
Securities in global form, which shall be exchanged in accordance with the provisions thereof, if temporary Securities of any series are
issued, the Company will cause definitive Securities of such series to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities of such series shall be exchangeable, at the Corporate Trust Office of the Trustee, or
at such other office or agency as may be maintained by the Company in a Place of Payment pursuant to Section 10.02 hereof, for definitive
Securities of such series having identical terms and provisions, upon surrender of the temporary Securities of such series, at the Company’s
own expense and without charge to the Holder; and upon surrender for cancellation of any one or more temporary Securities of any series,
the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities
of such series in authorized denominations containing identical terms and provisions. Unless otherwise specified as contemplated by Section 3.01
with respect to a temporary Security in global form, until so exchanged, the temporary Securities of such series shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities of such series.
Section 3.05 Registration,
Transfer and Exchange.
With respect to the Securities
of each series, the Trustee shall keep a register (herein sometimes referred to as the “Security Register”) which
shall provide for the registration of Securities of such series, and for transfers of Securities of such series, in accordance with information
to be provided to the Trustee by the Company, subject to such reasonable regulations as the Trustee may prescribe. Such register shall
be in written form or in any other form capable of being converted into written form within a reasonable time. At all reasonable times
the information contained in such register or registers shall be available for inspection at the Corporate Trust Office of the Trustee
or at such other office or agency to be maintained by the Company pursuant to Section 10.02 hereof.
Upon due presentation for
registration of transfer of any Security of any series at the Corporate Trust Office of the Trustee or at any other office or agency maintained
by the Company with respect to that series pursuant to Section 10.02 hereof, the Company shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees, one or more new Securities of such series of any authorized denominations,
of like aggregate principal amount, tenor, terms and Scheduled Maturity Date.
Any other provision of this
Section 3.05 notwithstanding, unless and until it is exchanged in whole or in part for the individual Securities represented thereby,
in definitive form, a Security in global form 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.
At the option of the Holder,
Securities of any series may be exchanged for other Securities of such series of any authorized denominations, of like aggregate principal
amount, tenor, terms and Scheduled Maturity Date, upon surrender of the Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Securityholder making the exchange is entitled to receive.
If at any time the Depositary
for the Securities of a series represented by one or more Securities in global form notifies the Company 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 such series shall
no longer be eligible under Section 3.03 hereof, the Company, by Company Order, 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 Company within 90 days
after the Company receives such notice or becomes aware of such ineligibility, the Company’s election pursuant to Section 3.01
that such Securities be represented by one or more Securities in global form shall no longer be effective with respect to the Securities
of such series and the Company will execute, and the Trustee, upon receipt of an Authentication Order for the authentication and delivery
of definitive Securities of such series, will authenticate and deliver Securities of such series in definitive form, in authorized denominations,
in an aggregate principal amount, and of like terms and tenor, equal to the principal amount of the Security or Securities in global form
representing such series, in exchange for such Security or Securities in global form.
The Company may at any time
and in its sole discretion and subject to the procedures of the Depositary determine that individual Securities of any series issued in
global form shall no longer be represented by such Security or Securities in global form. In such event the Company will execute, and
the Trustee, upon receipt of an Authentication Order for the authentication and delivery of definitive Securities of such series and of
the same terms and tenor, will authenticate and deliver Securities of such series in definitive form, in authorized denominations, and
in aggregate principal amount equal to the principal amount of the Security or Securities in global form representing such series in exchange
for such Security or Securities in global form.
If specified by the Company pursuant to Section 3.01 with respect
to a series of Securities issued in global form, the Depositary for such series of Securities may surrender a Security in global form
for such series of Securities in exchange in whole or in part for Securities of such series in definitive form and of like terms and
tenor on such terms as are acceptable to the Company and such Depositary. Thereupon, the Company shall execute, and the Trustee upon
receipt of an Authentication Order for the authentication and delivery of definitive Securities of such series, shall authenticate and
deliver, without service charge:
(a) to
each Person specified by such Depositary, a new definitive Security or Securities of the same series and of the same tenor and terms,
in authorized denominations, in aggregate principal amount equal to and in exchange for such Person’s beneficial interest in the
Security in global form; and
(b) to
such Depositary, a new Security in global form in a denomination equal to the difference, if any, between the principal amount of the
surrendered Security in global form and the aggregate principal amount of the definitive Securities delivered to Holders pursuant to clause (a) above.
Upon the exchange of a Security
in global form for Securities in definitive form, such Security in global form shall be canceled by the Trustee or an agent of the Company
or the Trustee. Securities issued in definitive form in exchange for a Security in global form pursuant to this Section 3.05 shall
be registered in such names and in such authorized denominations as the Depositary for such Security in global form, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the Trustee or an agent of the Company or the Trustee in writing.
The Trustee or such agent shall deliver such Securities to or as directed by the Persons in whose names such Securities are so registered
or to the Depositary.
Whenever any securities are
so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
All Securities issued upon
any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled
to the same benefits under this Indenture, as the Securities surrendered upon such transfer or exchange.
Every Security presented or
surrendered for registration of transfer, exchange, redemption or payment shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed
by the Holder thereof or his attorney duly authorized in writing.
Unless otherwise provided
in the Security to be transferred or exchanged, no service charge shall be imposed for any registration of transfer or exchange of Securities,
but the Company may (unless otherwise provided in such Security) require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Securities, other than exchanges pursuant to Section 3.04,
3.06, 9.06 and 11.07 hereof not involving any transfer.
The Company shall not be required
to (i) issue, register the transfer of, or exchange any Security of any series during a period beginning at the opening of business
15 days before the day of the mailing of a notice of redemption of Securities of such series selected for redemption under Section 11.03
and ending at the close of business on the date of such mailing, or (ii) register the transfer of or exchange any Security so selected
for redemption in whole or in part, except in the case of any Security to be redeemed in part, the portion thereof not to be redeemed.
Section 3.06 Mutilated,
Destroyed, Lost and Stolen Securities.
If (i) any mutilated
Security is surrendered to the Trustee, or the Company and the Trustee receive evidence to their satisfaction of the destruction, loss
or theft of any Security, and (ii) there is delivered to the Company and the Trustee such security or indemnity as may be required
by them to save each of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired
by a bona fide purchaser, the Company may in its discretion execute and upon request of the Company the Trustee shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Security, a new Security of like tenor, terms, series,
Scheduled Maturity Date, and principal amount, bearing a number not contemporaneously outstanding.
In case any such mutilated,
destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing
a new Security, pay such Security.
Upon the issuance of any new
Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately with any and all other Securities of the same series duly issued hereunder.
The provisions of this Section are
exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
Section 3.07 Payment
of Interest; Interest Rights Preserved.
Interest on any Security which
is payable and is punctually paid or duly provided for on any Interest Payment Date shall, if so provided in such Security, be paid to
the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the applicable
Record Date, notwithstanding any transfer or exchange of such Security subsequent to such Record Date and prior to such Interest Payment
Date. (unless such Interest Payment Date is also the date of Maturity of such Security).
Any interest on any
Security which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called
“Defaulted Interest”) shall forthwith cease to be payable to the registered Holder on the applicable Record Date
by virtue of his having been such Holder; and, except as hereinafter provided, such Defaulted Interest may be paid by the Company,
at its election in each case, as provided in clause (a) or clause (b) below:
(a) The
Company may elect to make payment of any Defaulted Interest to the Persons in whose names any such Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each such Security and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount
of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit
of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 nor less than 10 days prior to the date of the proposed payment
and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to the Holder of each such
Security at his address as it appears in the Security Register, not less than 10 days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable pursuant to the following clause (b).
(b) The
Company may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities
exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.
Interest on Securities of
any series that bear interest may be paid by mailing a check to the address of the Person entitled thereto at such address as shall appear
in the Securities Register for such series or by such other means as may be specified in the form of such Security.
Subject to the foregoing provisions
of this Section 3.07 and the provisions of Section 3.05 hereof, each Security delivered under this Indenture upon registration
of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue,
which were carried by such other Security.
Section 3.08 Persons
Deemed Owners.
Prior to due presentment of
a Security for registration of transfer, the Company, the Trustee, and any agent of the Company or the Trustee may treat the Person in
whose name any Security is registered on the applicable Record Date(s) as the owner of such Security for the purpose of receiving
payment of principal, premium, if any, interest, if any (subject to Sections 3.05 and 3.07 hereof), and any additional amounts payable
with respect to such Security, and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee, nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee,
any Authenticating Agent, any Paying Agent, the Security Registrar, or any Co-Security Registrar will have any responsibility or liability
for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Security in global form or
for maintaining, supervising or reviewing any records relating to such beneficial ownership interests and each of them may act or refrain
from acting without liability on any information relating to such records provided by the Depositary.
Section 3.09 Cancellation.
All Securities surrendered
for payment, redemption, registration of transfer, exchange, or credit against a sinking or analogous fund shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee and, if not already canceled, shall be promptly canceled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Securities so delivered shall be promptly canceled by the Trustee. Acquisition of
such Securities by the Company shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless
and until the same are delivered to the Trustee for cancellation. No Security shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as expressly permitted by this Indenture. The Trustee shall dispose of all canceled
Securities in accordance with its customary procedures and upon request from the Company deliver a certificate of such disposition to
the Company.
Section 3.10 Computation
of Interest.
Unless otherwise provided
as contemplated in Section 3.01, interest on the Securities shall be calculated on the basis of a 360-day year of twelve 30-day months.
Article IV. SATISFACTION
AND DISCHARGE
Section 4.01 Satisfaction
and Discharge of Indenture.
This Indenture shall cease
to be of further effect with respect to any series of Securities (except as to any surviving rights of conversion or transfer or exchange
of Securities of such series expressly provided for herein or in the form of Security for such series and obligations described as surviving
below), and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture as to such series, when
(a) either
| (i) | all Securities of that series theretofore authenticated and delivered (other than (A) Securities
of such series which have been destroyed, lost, or stolen and which have been replaced or paid as provided in Section 3.06, and (B) Securities
of such series for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in Section 4.07) have been delivered to the Trustee canceled or
for cancellation; or |
| (ii) | all such Securities of that series not theretofore delivered to the Trustee canceled or for cancellation |
| (A) | have become due and payable, or |
| (B) | will, in accordance with their Scheduled Maturity Date, become due and payable within one year, or |
| (C) | are to be called for redemption within one year under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, and, in any of the cases described in subparagraphs (A),
(B), or (C) above, the Company has irrevocably deposited or caused to be deposited with the Trustee, as trust funds in trust for
the purpose, (x) an amount in money sufficient, (y) U.S. Government Obligations or Equivalent Government Securities which through
the payment of interest and principal in respect thereof in accordance with their terms will provide, not later than one day before the
due date of any payment, money sufficient, or (z) a combination of (x) and (y) sufficient, in the opinion with respect
to (y) and (z) of a nationally recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge the entire indebtedness on such Securities with respect to principal, premium, if any,
and interest, if any, to the date of such deposit (in the case of Securities which have become due and payable), or to the Scheduled Maturity
Date or Redemption Date, as the case may be; provided, however , that if such U.S. Government Obligations or Equivalent Government Securities
are callable or redeemable at the option of the issuer thereof, the amount of such money, U.S. Government Obligations, and Equivalent
Government Securities deposited with the Trustee must be sufficient to pay and discharge the entire indebtedness referred to above if
such issuer elects to exercise such call or redemption provisions at any time prior to the Scheduled Maturity Date or Redemption Date,
as the case may be, and the Company, but not the Trustee, shall be responsible for monitoring any such call or redemption provision; and |
(b) the
Company has paid or caused to be paid all other sums payable hereunder by the Company with respect to the Securities of such series; and
(c) the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this Indenture with respect to the Securities of such series have been
complied with.
Notwithstanding
the satisfaction and discharge of this Indenture with respect to any series of Securities, the obligations of the Company under paragraph
(a) of this Section 4.01 and its obligations to the Trustee with respect to that series under Section 6.07 shall survive,
and the obligations of the Trustee under Sections 4.05, 4.07 and 10.03 shall survive.
Section 4.02 Discharge
and Defeasance.
The provisions of this Section and
Section 4.04 (insofar as relating to this Section) shall apply to the Securities of each series unless specifically otherwise provided
in a Board Resolution or indenture supplemental hereto provided pursuant to Section 3.01. In addition to discharge of this Indenture
pursuant to Section 4.01, in the case of any series of Securities with respect to which the exact amount described in subparagraph
(a) of Section 4.04 can be determined at the time of making the deposit referred to in such subparagraph (a), the Company
shall be deemed to have paid and discharged the entire indebtedness on all the Securities of such a series as provided in this Section on
and after the date the conditions set forth in Section 4.04 are satisfied, and the provisions of this Indenture with respect to the
Securities of such series shall no longer be in effect (except as to (i) rights of registration of transfer and exchange of Securities
of such series, (ii) substitution of mutilated, destroyed, lost or stolen Securities of such series, (iii) rights of Holders
of Securities of such series to receive, solely from the trust fund described in subparagraph (a) of Section 4.04, payments
of principal thereof, premium, if any, and interest, if any, thereon upon the original stated due dates or upon the Redemption Dates therefor
(but not upon acceleration), and remaining rights of the Holders of Securities of such series to receive mandatory sinking fund payments,
if any, (iv) the rights, obligations, duties and immunities of the Trustee hereunder, (v) this Section 4.02, Section 4.07,
Section 10.02 and Section 10.03 and (vi) the rights of the Holders of Securities of such series as beneficiaries hereof
with respect to the property so deposited with the Trustee payable to all or any of them) (hereinafter called “Defeasance”),
and the Trustee at the cost and expense of the Company, shall execute proper instruments acknowledging the same.
Section 4.03 Covenant
Defeasance.
The provisions of this
Section and Section 4.04 (insofar as relating to this Section) shall apply to the Securities of each series unless
specifically otherwise provided in a Board Resolution or indenture supplemental hereto provided pursuant to Section 3.01. In
the case of any series of Securities with respect to which the exact amount described in subparagraph (a) of Section 4.04
can be determined at the time of making the deposit referred to in such subparagraph (a), (i) the Company shall be released
from its obligations under any covenants specified in or pursuant to Section 3.01 as being subject to Covenant Defeasance with
respect to such series (except as to (a) rights of registration of transfer and exchange of Securities of such series and
rights under Section 4.07, Section 10.02 and Section 10.03, (b) substitution of mutilated, destroyed, lost or
stolen Securities of such series, (c) rights of Holders of Securities of such series to receive, from the Company pursuant to
Section 10.01, payments of principal thereof and interest, if any, thereon upon the original stated due dates or upon the
Redemption Dates therefor (but not upon acceleration), and remaining rights of the Holders of Securities of such series to receive
mandatory sinking fund payments, if any, (d) the rights, obligations, duties and immunities of the Trustee hereunder and
(e) the rights of the Holders of Securities of such series as beneficiaries hereof with respect to the property so deposited
with the Trustee payable to all or any of them), and (ii) the occurrence of any event specified in
Section 5.01(d) (with respect to any of the covenants specified in or pursuant to Section 3.01 as being subject to
Covenant Defeasance with respect to such series) shall be deemed not to be or result in a default or an Event of Default, in each
case with respect to the Outstanding Securities of such series as provided in this Section on and after the date the conditions
set forth in Section 4.04 are satisfied (hereinafter called “Covenant Defeasance”), and the Trustee at the cost and
expense of the Company, shall execute proper instruments acknowledging the same. For this purpose, such Covenant Defeasance means
that the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in
any such covenant (to the extent so specified in the case of Section 5.01(d)), whether directly or indirectly by reason of any
reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or
in any other document, but the remainder of this Indenture and the Securities of such series shall be unaffected thereby.
Section 4.04 Conditions
To Defeasance Or Covenant Defeasance.
The following shall be the
conditions to application of either Section 4.02 or Section 4.03 to the Outstanding Securities:
(a) with
reference to Section 4.02 or Section 4.03, the Company has irrevocably deposited or caused to be irrevocably deposited with
the Trustee as funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of Securities
of such series (i) money in an amount, or (ii) U.S. Government Obligations or Equivalent Government Securities which through
the payment of interest and principal in respect thereof in accordance with their terms will provide, not later than one day before the
due date of any payment, money in an amount, or (iii) a combination of (i) and (ii), sufficient, in the opinion (with respect
to (ii) and (iii)) of a nationally recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge each installment of principal (including mandatory sinking fund payments) of, premium,
if any, and interest on, the Outstanding Securities of such series on the dates such installments of interest, premium or principal are
due, including upon redemption; provided, however , that if such U.S. Government Obligations and Equivalent Government Securities are
callable or redeemable at the option of the issuer thereof, the amount of such money, U.S. Government Obligations, and/or Equivalent Government
Securities deposited with the Trustee must be sufficient to pay and discharge the entire indebtedness referred to above if the issuer
of any such U.S. Government Obligations or Equivalent Government Securities elects to exercise such call or redemption provisions at any
time prior to the Scheduled Maturity Date or Redemption Date of such Securities, as the case may be. The Company, but not the Trustee,
shall be responsible for monitoring any such call or redemption provision.
(b) in
the case of Defeasance under Section 4.02, the Company has delivered to the Trustee an Opinion of Counsel based on the fact that
(x) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (y) since the date
hereof, there has been a change in the applicable United States federal income tax law, in either case to the effect that, and such opinion
shall confirm that, the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes
as a result of such deposit, defeasance and discharge and will be subject to federal income tax on the same amount and in the same manner
and at the same times, as would have been the case if such deposit, Defeasance and discharge had not occurred;
(c) in
the case of Covenant Defeasance under Section 4.03, the Company has delivered to the Trustee an Opinion of Counsel to the effect
that, and such opinion shall confirm that, the Holders of the Securities of such series will not recognize income, gain or loss for federal
income tax purposes as a result of such deposit and Covenant Defeasance and will be subject to federal income tax on the same amount and
in the same manner and at the same times, as would have been the case if such deposit and Covenant Defeasance had not occurred;
(d) no
Event of Default or event which, with notice or lapse of time or both, would become an Event of Default with respect to the Securities
of such series shall have occurred and be continuing on the date of such deposit, after giving effect to such deposit or, in the case
of a Defeasance under Section 4.02, no Event of Default specified in Section 5.01(e) or Section 5.01(f) shall
have occurred, at any time during the period ending on the 91st day after the date of such deposit or, if longer, ending on the day following
the expiration of the longest preference period applicable to the Company in respect of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period);
(e) such
Defeasance or Covenant Defeasance will not cause the Trustee to have a conflicting interest within the meaning of the TIA, assuming all
Securities of a series were in default within the meaning of the TIA;
(f) such
Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, any agreement or instrument
to which the Company is a party or by which it is bound;
(g) such
Defeasance or Covenant Defeasance will not result in the trust arising from such deposit constituting an investment company within the
meaning of the Investment Company Act of 1940, as amended, unless the trust is registered under such Act or exempt from registration;
(h) if
the Securities of such series are to be redeemed prior to their Stated Maturity Date (other than from mandatory sinking fund payments
or analogous payments), notice of such redemption shall have been duly given pursuant to this Indenture or provision therefor satisfactory
to the Trustee shall have been made; and
(i) the
Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for herein relating to such Defeasance or Covenant Defeasance, as the case may be, have been complied with.
Section 4.05 Application
of Trust Money; Excess Funds.
All money and U.S.
Government Obligations or Equivalent Government Securities (including the proceeds thereof) deposited with the Trustee pursuant to
Section 4.01 or Section 4.04 hereof shall be held in trust and applied by it, in accordance with the provisions of this
Indenture and of the series of Securities in respect of which it was deposited, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent), as the Trustee may determine, to the Persons entitled thereto,
of the principal, premium, if any, and interest, if any, for whose payment such money has been deposited with the Trustee; but such
money need not be segregated from other funds except to the extent required by law.
The Company will pay and indemnify
the Trustee against any tax, fee or other charge imposed on or assessed against the cash or U.S. Government Obligations or Equivalent
Government Securities deposited pursuant to Section 4.01 or Section 4.04 hereof or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the Outstanding Securities.
Anything in this Article 4
to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or U.S.
Governmental Obligations or Equivalent Government Securities held by it as provided in Section 4.01 or Section 4.04 which, in
the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, expressed in a written
certification thereof delivered to the Trustee, (which may be the opinion delivered under Section 4.01 or Section 4.04, as applicable),
are in excess of the amount thereof that would then be required to be deposited to effect an equivalent satisfaction and discharge, Covenant
Defeasance or Defeasance of the applicable series.
Section 4.06 Paying
Agent to Repay Moneys Held.
Upon the satisfaction and
discharge of this Indenture, all moneys then held by any Paying Agent of the Securities (other than the Trustee) shall, upon demand of
the Company, be repaid to it or paid to the Trustee, and thereupon such Paying Agent shall be released from all further liability with
respect to such moneys.
Section 4.07 Return
of Unclaimed Amounts.
Any amounts deposited with
or paid to the Trustee or any Paying Agent or then held by the Company, in trust for payment of the principal of, premium, if any, or
interest, if any, on the Securities and not applied but remaining unclaimed by the Holders of such Securities for two years after the
date upon which the principal of, premium, if any, or interest, if any, on such Securities, as the case may be, shall have become due
and payable, shall be repaid to the Company by the Trustee on Company Request or (if then held by the Company) shall be discharged from
such trust; and the Holder of any of such Securities shall thereafter look only to the Company for any payment which such Holder may be
entitled to collect (until such time as such unclaimed amounts shall escheat, if at all, to the State of New York) and all liability of
the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon
cease. Notwithstanding the foregoing, the Trustee or Paying Agent, before being required to make any such repayment, may at the expense
of the Company cause to be published once a week for two successive weeks (in each case on any day of the week) in a newspaper printed
in the English language and customarily published at least once a day at least five days in each calendar week and of general circulation
in the Borough of Manhattan, in the City and State of New York, a notice that said amounts have not been so applied and that after a date
named therein any unclaimed balance of said amounts then remaining will be promptly returned to the Company.
Article V. REMEDIES
Section 5.01 Events
of Default.
“Event of Default”,
wherever used herein, means with respect to any series of Securities any one of the following events (whatever the reason for such Event
of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or governmental body), unless such event is either inapplicable
to a particular series or it is specifically deleted or modified in the manner contemplated by Section 3.01:
(a) default
in the payment of any interest on any Security of such series when it becomes due and payable, and continuance of such default for a period
of 30 days; or
(b) default
in the payment of the principal amount of (or premium, if any, on) any Security of such series as and when the same shall become due,
either at Maturity, upon redemption, by declaration, or otherwise; or
(c) default
in the payment of any sinking or purchase fund or analogous obligation when the same becomes due by the terms of the Securities of such
series and continuance of such default for a period of 30 days; or
(d) default
in the performance or breach of any covenant or warranty of the Company in this Indenture in respect of the Securities of such series
(other than a covenant or warranty in respect of the Securities of such series a default in the performance of which or the breach of
which is elsewhere in this Section specifically dealt with), and continuance of such default or breach for a period of 60 days
after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders
of at least 25% in the principal amount of the Outstanding Securities of such series, a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or
(e) the
entry of an order for relief against the Company under the Federal Bankruptcy Act by a court having jurisdiction in the premises
or a decree or order by a court having jurisdiction in the premises adjudging the Company a bankrupt or insolvent under any other applicable
Federal or State law, or the entry of a decree or order approving as properly filed a petition seeking reorganization, arrangement, adjustment
or composition of or in respect of the Company under the Federal Bankruptcy Code or any other applicable Federal or State law, or appointing
a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or of any substantial part of its property,
or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a
period of 90 consecutive days; or
(f) the
consent by the Company to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under the Federal Bankruptcy Code or any other applicable Federal or State law,
or the consent by it to the filing of any such petition or to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Company or of any substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they
become due, or the taking of corporate action by the Company in furtherance of any such action; or
(g) any
other Event of Default provided for with respect to the Securities of such series in accordance with Section 3.01. A default under
any indebtedness of the Company other than the Securities will not constitute an Event of Default under this Indenture, and a default
under one series of Securities will not constitute a default under any other series of Securities. The Trustee shall not be charged with
knowledge of an Event of Default unless a Responsible Officer at the Corporate Trust Office has actual knowledge thereof.
Section 5.02 Acceleration
of Maturity; Rescission, and Annulment.
If an Event of Default specified
in Section 5.01(e) or Section 5.01(f) occurs, the principal amount of the Securities of such series and any and all
accrued interest thereon shall immediately become and be due and payable without any declaration or other act on the party of the Trustee
or any Holder. No declaration of acceleration by the Trustee with respect to any series of Securities shall constitute a declaration of
acceleration by the Trustee with respect to any other series of Securities, and no declaration of acceleration by the Holders of at least
51% in aggregate principal amount of the Outstanding Securities of any series shall constitute a declaration of acceleration or other
action by any of the Holders of any other series of Securities, in each case whether or not the Event of Default on which such declaration
is based shall have occurred and be continuing with respect to more than one series of Securities, and whether or not any Holders of the
Securities of any such affected series shall also be Holders of Securities of any other such affected series.
At any time after such a declaration
of acceleration has been made with respect to the Securities of any series and before a judgment or decree for payment of the money due
has been obtained by the Trustee as hereinafter in this Article provided, the Holders of not less than a majority of the aggregate
principal amount of the Outstanding Securities of such series, by written notice to the Company and the Trustee, may rescind and annul
such declaration and its consequences if all Events of Default with respect to such series of Securities, other than the nonpayment of
the principal of the Securities of such series which have become due solely by such acceleration, have been cured or waived as provided
in Section 5.13, if such cure or waiver does not conflict with any judgment or decree set forth in Section 5.01(e) and
Section 5.01(f) and if all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel have been paid.
No such rescission shall affect
any subsequent default or impair any right consequent thereon.
Section 5.03 Collection
of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that
if:
(a) default
is made in the payment of any installment of interest on any Security of any series when such interest becomes due and payable, or
(b) default
is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof, or
(c) default
is made in the payment of any sinking or purchase fund or analogous obligation when the same becomes due by the terms of the Securities
of any series, and
(d) any
such default continues for any period of grace provided in relation to such default pursuant to Section 5.01, then, with respect
to the Securities of such series, the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holder of any such Security
(or the Holders of any such series in the case of clause (c) above), the whole amount then due and payable on any such Security (or
on the Securities of any such series in the case of clause (c) above) for principal (and premium, if any) and interest, if any, with
interest (to the extent that payment of such interest shall be legally enforceable) upon the overdue principal (and premium, if any) and
upon overdue installments of interest, if any, at such rate or rates as may be prescribed therefor by the terms of any such Security (or
of Securities of any such series in the case of clause (c) above); and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and all other amounts due the Trustee under Section 6.07.
If the Company fails to pay
such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding
for the collection of the sums so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon the Securities of such series and collect the money adjudged or decreed to be payable in
the manner provided by law out of the property of the Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with
respect to any series of Securities occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights
and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 5.04 Trustee
May File Proofs of Claim.
In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition, or other judicial proceeding
relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors,
the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceedings or otherwise,
(a) to
file and prove a claim for the whole amount of principal (or, with respect to Original Discount Securities, such portion of the principal
amount as may be specified in the terms of such Securities), premium, if any, and interest, if any, owing and unpaid in respect of the
Securities, and to file such other papers or documents as may be necessary and advisable in order to have the claims of the Trustee (including
any claim for the reasonable compensation, expenses, disbursements, and advances of the Trustee, its agents and counsel, and all other
amounts due the Trustee under Section 6.07) and of the Securityholders allowed in such judicial proceedings, and
(b) to
collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any receiver,
assignee, trustee, liquidator, sequestrator (or other similar official) in any such judicial proceeding is hereby authorized by each Securityholder
to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Securityholders,
to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee and its
agent and counsel, and any other amounts due the Trustee under Section 6.07 hereof.
Nothing herein contained shall
be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof, or to authorize the Trustee to vote
in respect of the claim of any Securityholder in any such proceeding.
Section 5.05 Trustee
May Enforce Claims Without Possession of Securities.
All rights of action and claims
under this Indenture or the Securities of any series may be prosecuted and enforced by the Trustee without the possession of any of the
Securities of such series or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of
the reasonable compensation, expenses, disbursements and advances of the Trustee and its agents and counsel, be for the ratable benefit
of the Holders of the Securities, of the series in respect of which such judgment has been recovered.
Section 5.06 Application
of Money Collected.
Any money collected by the
Trustee with respect to a series of Securities pursuant to this Article shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such money on account of principal, premium, if any, or interest, if any, upon
presentation of the Securities of such series and the notation thereon of the payment, if only partially paid, and upon surrender thereof,
if fully paid:
First: To the payment
of all amounts due the Trustee (acting in any capacity hereunder) under Section 6.07 hereof.
Second: To the payment
of the amounts then due and unpaid upon the Securities of that series for principal, premium, if any, interest, if any, and additional
amounts, if any, in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority
of any kind.
Section 5.07 Limitation
on Suits.
No Holder of any Security
of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment
of a receiver or trustee, or for any other remedy hereunder, unless
(a) such
Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to Securities of such series;
(b) the
Holders of not less than 51% in principal amount of the Outstanding Securities of such series shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(c) such
Holder or Holders have offered to the Trustee indemnity reasonably satisfactory to the Trustee against the costs, expenses and liabilities
to be incurred in compliance with such request;
(d) the
Trustee for 60 days after its receipt of such notice, request, and offer of indemnity has failed to institute any such proceeding;
and
(e) no
direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of such series; it being understood and intended that no one or more Holders of Securities
of such series shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other Holders of Securities of such series, or to obtain or to seek to obtain priority or preference
over any other such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and proportionate
benefit of all the Holders of all Securities of such series.
Section 5.08 Unconditional
Right of Securityholders to Receive Principal, Premium, and Interest.
Notwithstanding any other
provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment
of the principal, premium, if any, and (subject to Section 3.07) interest, if any, (and additional amounts, if any) on such Security
on or after the respective payment dates expressed in such Security (or, in the case of redemption or repayment, on the Redemption Date
or Repayment Date, as the case may be) and to institute suit for the enforcement of any such payment on or after such respective date,
and such right shall not be impaired or affected without the consent of such Holder.
Section 5.09 Restoration
of Rights and Remedies.
If the Trustee or any Securityholder
has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned
for any reason, then and in every such case the Company, the Trustee and the Securityholders shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the
Trustee and the Securityholders shall continue as though no such proceeding had been instituted.
Section 5.10 Rights
and Remedies Cumulative.
No right or remedy herein
conferred upon or reserved to the Trustee or to the Securityholders is intended to be exclusive of any other right or remedy, and every
right or remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 5.11 Delay
or Omission Not Waiver.
No delay or omission of the
Trustee or of any Holder of any Security to exercise any right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or
by law to the Trustee or to the Securityholders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee
or by the Securityholders, as the case may be.
Section 5.12 Control
by Securityholders.
The Holders of a majority
in principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect to the Securities
of such series, provided that
(a) the
Trustee shall have the right to decline to follow any such direction if the Trustee, being advised by counsel, determines that the action
so directed may not lawfully be taken or would conflict with this Indenture or if the Trustee in good faith shall, by a Responsible Officer,
determine that the proceedings so directed would involve it in personal liability or be unjustly prejudicial to the Holders not taking
part in such direction (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not such directions
are unduly prejudicial to such Holders),
(b) the
Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction; and
(c) prior
to taking any such action hereunder, the Trustee shall be entitled to indemnification satisfactory to it against all fees, losses, liabilities
and expenses (including attorney’s fees and expenses) caused by or that might be caused by taking or not taking such action.
Section 5.13 Waiver
of Past Defaults.
The Holders of not less than
a majority in principal amount of the Outstanding Securities of any series may, on behalf of the Holders of all the Securities of such
series, waive any past default hereunder with respect to such series and its consequences, except a default not theretofore cured:
(a) in
the payment of principal, premium, if any, or interest, if any, on any Security of such series, or in the payment of any sinking or purchase
fund or analogous obligation with respect to the Securities of such series, or
(b) in
respect of a covenant or provision in this Indenture which, under Article Nine hereof, cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such series.
Upon any such waiver, such
default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 5.14 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, 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 Securityholder or group of Securityholders
holding in the aggregate more than 10% in principal amount of the Outstanding Securities of any series to which the suit relates, or to
any suit instituted by any Securityholder for the enforcement of the payment of principal, premium, if any, or interest, if any, on any
Security on or after the respective payment dates expressed in such Security (or, in the case of redemption or repayment, on or after
the Redemption Date or Repayment Date).
Section 5.15 Waiver
of Stay or Extension Laws.
The Company covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law (other than any bankruptcy law) wherever enacted, now or at any time hereafter in force,
which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
Article VI. THE
TRUSTEE
Section 6.01 Certain
Duties and Responsibilities of Trustee.
(a) Except
during the continuance of an Event of Default with respect to any series of Securities,
| (i) | the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this
Indenture with respect to the Securities of such series, and no implied covenants or obligations shall be read into this Indenture against
the Trustee; and |
| (ii) | in the absence of bad faith on its part, the Trustee may, with respect to Securities of such series, conclusively
rely upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any
such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they conform on their face to the requirements of this Indenture (but
need not confirm or investigate the accuracy of calculations or other facts stated therein). |
(b) If
an Event of Default with respect to any series of Securities actually known to a Responsible Officer of the Trustee has occurred and is
continuing, the Trustee shall exercise, with respect to the Securities of such series, such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances
in the conduct of his own affairs.
(c) No
provision of this Indenture shall be construed to relieve the Trustee from liability for its own gross negligent action, its own gross
negligent failure to act, or its own willful misconduct, except that
| (i) | this Subsection shall not be construed to limit the effect of Subsection (a) of this Section; |
| (ii) | the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer,
unless it shall be proved that the Trustee was grossly negligent in ascertaining the pertinent facts; |
| (iii) | the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of not less than a majority in principal amount of the Outstanding Securities of
any series relating to the time, method, and place of conducting any proceeding for any remedy available to the Trustee with respect to
the Securities of such series, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities
of such series; and |
| (iv) | no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it. |
(d) Whether
or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
Section 6.02 Notice
of Defaults.
Within 90 days after
receipt of notice of the occurrence of any default hereunder with respect to Securities of any series, the Trustee shall transmit by mail
to all Securityholders of such series, as their names and addresses appear in the Security Register, notice of such default hereunder
actually known to the Trustee, unless such default shall have been cured or waived; provided, however, that, except
in the case of a default in the payment of the principal, premium, if any, or interest, if any, on any Security of such series or in the
payment of any sinking or purchase fund installment or analogous obligation with respect to Securities of such series, the Trustee shall
be protected in withholding such notice if and so long as the Trustee in good faith determines that the withholding of such notice is
in the interests of the Securityholders of such series and; provided, further, that, in the case of any default
of the character specified in Section 5.01(d) with respect to Securities of such series, no such notice to Securityholders of
such series shall be given until at least 60 days after the occurrence thereof. For the purpose of this Section, the term “default”,
with respect to Securities of any series, means any event which is, or after notice or lapse of time or both would become, an Event of
Default with respect to Securities of such series.
Section 6.03 Certain
Rights of Trustee.
Except as otherwise provided
in Section 6.01 above:
(a) the
Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or parties and need not investigate any fact or matter stated therein;
(b) any
request, direction or order of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and
any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever
in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) shall be entitled to receive and
conclusively rely upon an Officers’ Certificate or Opinion of Counsel or both, and shall not be liable for any action it takes or
omits to take in good faith reliance on such certificate or opinion;
(d) the
Trustee may consult with counsel of its selection and the advice or opinion of such counsel or any Opinion of Counsel as to matters of
law shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction
of any of the Securityholders pursuant to this Indenture, unless such Securityholders shall have offered to the Trustee security or indemnity
reasonably satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by
agent or attorney;
(g) the
Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys
and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care
by it hereunder;
(h) in
no event shall the Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including,
but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action;
(i) the
rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person
employed to act hereunder;
(j) the
Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized
at such time to take specified actions pursuant to this Indenture;
(k) before
the Trustee acts or refrains from acting it may require an Opinion of Counsel or an Officers’ Certificate;
(l) The
Trustee shall not be deemed to have notice of any Default or Event of Default with respect to the Securities of any Series unless
a Responsible Officer has actual knowledge thereof or unless written notice of such Default is received by a Responsible Officer at the
office of the Trustee, and such notice references such Securities and this Indenture and states that it is a notice of Default;
(m) The
Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder;
(n) The
Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising
out of or caused, directly or indirectly, by circumstances beyond its control, including acts of God; earthquakes; fire; flood; terrorism;
wars and other military disturbances; sabotage; epidemics; riots; interruptions; loss or malfunctions of utilities, computer (hardware
or software) or communication services; accidents; labor disputes; acts of civil or military authority and governmental action;
(o) Under
no circumstances shall the Trustee be liable in its individual capacity for the obligations evidenced by the Securities; and
(p) The
Trustee shall not be liable or responsible for any action or inaction of the Depositary or any other clearinghouse or depositary.
Section 6.04 Not
Responsible for Recitals or Issuance of Securities.
The recitals contained herein
and in the Securities, except the certificates of authentication, shall be taken as the statements of the Company, and the Trustee assumes
no responsibility for their correctness. The Trustee makes no representations 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 Company of Securities or the proceeds thereof.
Section 6.05 May Hold
Securities.
The Trustee or any Paying
Agent, Security Registrar, or other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 6.08 and 6.13 hereof, may otherwise deal with the Company with the same rights it would have
if it were not Trustee, Paying Agent, Security Registrar, or such other agent.
Section 6.06 Money
Held in Trust.
Money held by the Trustee
in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability
for interest on any money received by it hereunder except as otherwise agreed in writing with the Company.
Section 6.07 Compensation
and Reimbursement.
The Company covenants and
agrees
(a) to
pay the Trustee (acting in any capacity hereunder or in connection herewith) from time to time, and the Trustee shall be entitled to,
reasonable compensation for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(b) except
as otherwise expressly provided herein, to reimburse the Trustee (acting in any capacity hereunder or in connection herewith)
upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the reasonable expenses and disbursements of its agents and counsel), except
any such expense, disbursement or advance as may be attributable to its gross negligence or willful misconduct; and
(c) to
indemnify the Trustee (acting in any capacity hereunder or in connection herewith) and its officers, directors, employees, counsel and
agents for, and to hold it harmless against, any loss, liability or expense (including, without limitation, the reasonable fees, expenses
and disbursements of its agents, legal counsel, accountants and experts) and including taxes (other than taxes based upon, measured by
or determined by the income of the Trustee) incurred without gross negligence or willful misconduct on its part, arising out of or in
connection with the acceptance or administration of this trust, including the reasonable costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder, or in connection with
enforcing the provisions of this Section 6.07.
Without prejudice to any other
rights available to the Trustee under applicable law, when the Trustee incurs expenses or renders services in connection with an Event
of Default specified in Section 5.01(e) and Section 5.01(f) above, such expenses (including the reasonable charges
and expenses of its counsel) and compensation for such services are intended to constitute expenses of administration under any applicable
Federal or State bankruptcy, insolvency, reorganization, or other similar law.
The Trustee shall have a lien
prior to the Securities upon all property and funds held or collected by it as such for any amount owing to it or any predecessor Trustee
pursuant to this Section 6.07, except with respect to funds held in trust for the benefit of the Holders of particular Securities.
Any compensation or expense
incurred by the Trustee after a default specified by Section 5.01(e) or (f) is intended to constitute an expense of administration
under any then applicable bankruptcy or insolvency law. “Trustee” for purposes of this Section 6.07 shall include any
predecessor Trustee but the negligence or willful misconduct of any Trustee shall not affect the rights of any other Trustee under this
Section 6.07. The provisions of this Section 6.07 shall, to the extent permitted by law, survive any termination of this Indenture
(including, without limitation, termination pursuant to any Bankruptcy Laws) and the resignation or removal of the Trustee.
The provisions of this Article shall
survive the satisfaction and discharge of this Indenture, and the resignation or removal of the Trustee.
Section 6.08 Disqualification;
Conflicting Interests.
If the Trustee has or shall
acquire any conflicting interest within the meaning of the Trust Indenture Act, it shall either eliminate such interest or resign as Trustee
with respect to one or more series of Securities, to the extent and in the manner provided by, and subject to the provisions of, the Trust
Indenture Act and this Indenture. To the extent permitted by such Trust Indenture Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to Securities of more than one series.
Section 6.09 Corporate
Trustee Required; Eligibility.
There shall at all times be
a Trustee hereunder with respect to each series of Securities that shall be a corporation, national association or other legal entity
organized and doing business under the laws of the United States of America or of any State or Territory thereof or of the District of
Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000,
and subject to supervision or examination by Federal or State authority and having its principal office and place of business in the City
of New York, if there be such a corporation having its principal office and place of business in said City and willing to act as
Trustee on customary and usual terms. If such corporation publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus
of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.
If at any time the Trustee with respect to any series of Securities shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
Section 6.10 Resignation
and Removal; Appointment of Successor.
(a) No
resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee under Section 6.11.
(b) The
Trustee may resign with respect to any one or more series of Securities at any time by giving at least 30 days’ written notice
thereof to the Company. If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction, at the expense
of the Company, for the appointment of a successor Trustee.
(c) The
Trustee may be removed upon at least 30 days’ written notice with respect to any series of Securities at any time by Act of
the Holders of 66 2/3% in principal amount of
the Outstanding Securities of that series, delivered to the Trustee and to the Company.
(d) If
at any time:
| (i) | the Trustee shall fail to comply with Section 6.08 above with respect to any series of Securities
after written request therefor by the Company or by any Securityholder who has been a bona fide Holder of a Security of that series for
at least six months, or |
| (ii) | the Trustee shall cease to be eligible under Section 6.09 above with respect to any series of Securities
and shall fail to resign after written request therefor by the Company or by any such Securityholder, or |
| (iii) | the Trustee shall become incapable of acting with respect to any series of Securities, or |
| (iv) | the Trustee shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then, |
in any such case
(A) the Company may remove the Trustee, with respect to the series or, in the case of clause (iv), with respect to all series,
or (B) subject to Section 5.14, any Securityholder who has been a bona fide Holder of a Security of such series for at least
6 months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee with respect to the series or, in the case of clause (iv), with respect to
all series.
(e) If
the Trustee shall resign, be removed or become incapable of acting with respect to any series of Securities, or if a vacancy shall occur
in the office of Trustee with respect to any series of Securities for any cause, the Company shall promptly appoint a successor Trustee
for that series of Securities. If, within one year after such resignation, removal or incapacity, or the occurrence of such vacancy, a
successor Trustee with respect to such series of Securities shall be appointed by Act of the Holders of 66 2/3%
in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee with respect to such series and supersede
the successor Trustee appointed by the Company with respect to such series. If no successor Trustee with respect to such series shall
have been so appointed by the Company or the Securityholders of such series and accepted appointment in the manner hereinafter provided,
any Securityholder who has been bona fide Holder of a Security of that series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to
such series.
(f) The
Company shall give notice of each resignation and each removal of the Trustee with respect to any series and each appointment of a successor
Trustee with respect to any series by mailing written notice of such event by first-class mail, postage prepaid, to the Holders of Securities
of that series as their names and addresses appear in the Security Register. Each notice shall include the name of the successor Trustee
and the address of its principal Corporate Trust Office.
Section 6.11 Acceptance
of Appointment by Successor.
Every successor Trustee appointed
hereunder with respect to all series of Securities shall execute, acknowledge and deliver to the Company and to the predecessor Trustee
an instrument accepting such appointment, and thereupon the resignation or removal of the predecessor Trustee shall become effective,
and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties
of the predecessor Trustee with respect to any such series; but, on request of the Company or the successor Trustee, such predecessor
Trustee shall, upon payment of its reasonable charges, if any, execute and deliver an instrument transferring to such successor Trustee
all the rights, powers and trusts of the predecessor Trustee, and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such predecessor Trustee hereunder. The retiring or removed Trustee shall have no responsibility or liability
for the action or inaction of any successor Trustee.
In case of the appointment
hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the predecessor Trustee
and each successor Trustee with respect to the Securities of any applicable series shall execute and deliver an indenture supplemental
hereto which (1) shall contain such provisions as shall be deemed necessary or desirable to transfer and to conform to, and to vest
in, each successor Trustee all the rights, powers, trusts and duties of the predecessor Trustee with respect to the Securities of any
series as to which the appointment of such successor Trustee relates and (2) if the predecessor Trustee is not retiring with respect
to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the predecessor Trustee with respect to the Securities of any series as to which the predecessor Trustee is not being succeeded
shall continue to be vested in the predecessor Trustee, and (3) shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood
that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be Trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates; and, on request of the Company or any successor Trustee, such retiring Trustee
shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of such successor Trustee relates.
Upon request of any such successor
Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee
all such rights, powers and trusts referred to in the first or second preceding paragraph, as the case may be.
No successor Trustee with
respect to any series of Securities shall accept its appointment unless at the time of such acceptance such successor Trustee shall be
qualified and eligible with respect to that series under this Article.
Notwithstanding replacement
of the Trustee pursuant to this Section, the Company’s obligations under Section 6.07 hereof shall continue for the benefit
of the retiring Trustee.
Section 6.12 Merger,
Conversion, Consolidation or Succession to Business.
Any corporation into which
the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder, provided that such corporation shall be otherwise qualified
and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto.
In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor Trustee by merger,
conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with
the same effect as if such successor Trustee had itself authenticated such Securities.
Section 6.13 Preferential
Collection of Claims Against Company.
If and when the Trustee shall
be or shall become a creditor of the Company (or of any other obligor upon the Securities), the Trustee shall be subject to the provisions
of the Trust Indenture Act regarding the collection of claims against the Company (or against any such other obligor, as the case may
be).
Section 6.14 Appointment
of Authenticating Agent.
At any time when any of the
Securities remain Outstanding the Trustee, with the approval of the Company, may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series
issued upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 3.06, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s
certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall
be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States
of America, any State thereof or the District of Columbia, authorized under such laws to act as an Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or examination by Federal or State authority. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any corporation into which
an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency
or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall
be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or
the Authenticating Agent.
An Authenticating Agent may
resign at any time by giving written notice thereof to the Trustee and, if other than the Company, to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and, if other than
the Company, to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee, with the approval of the Company, may
appoint a successor Authenticating Agent which shall be acceptable to the Company and shall mail written notice of such appointment by
first-class mail, postage prepaid, to all Holders of Securities of the series with respect to which such Authenticating Agent will serve,
as their names and addresses appear in the Security Register. Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as originally named as an Authenticating
Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay
to each Authenticating Agent from time to time reasonable compensation for its services under this Section.
If an appointment with respect
to one or more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustee’s
certificate of authentication, an alternate certificate of authentication in the following form:
This is one of the Securities
of the series designated therein referred to in the within-mentioned Indenture.
[●], as Trustee,
| By: |
|
|
| |
As Authenticating Agent: |
|
Article VII. SECURITYHOLDERS’
LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01 Company
to Furnish Trustee Names and Addresses of Securityholders.
The Company will furnish or
cause to be furnished to the Trustee:
(a) semiannually,
not more than 15 days after January 1 and July 1 in each year, in such form as the Trustee may reasonably require, a list
of the names and addresses of the Holders of Securities of each series as of such date, and
(b) at
such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list
of similar form and content as of a date not more than 15 days prior to the time such list is furnished, provided that if the Trustee
shall be the Security Registrar for such series, such list shall not be required to be furnished.
Section 7.02 Preservation
of Information; Communications to Securityholders.
(a) The
Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders of Securities contained
in the most recent list furnished to the Trustee as provided in Section 7.01 and the names and addresses of Holders of Securities
received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 7.01
upon receipt of a new list so furnished.
(b) If
three or more Holders of Securities of any series (hereinafter referred to as “applicants”) apply in writing to the
Trustee, and furnish to the Trustee reasonable proof that each such applicant has owned a Security of such series for a period of at least
six months preceding the date of such application, and such application states that the applicants desire to communicate with other Holders
of Securities of such series or with the Holders of all Securities with respect to their rights under this Indenture or under such Securities
and is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then the Trustee will
comply with the obligations imposed upon it in accordance with Section 312 of the Trust Indenture Act.
(c) Every
Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee
shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders of Securities
in accordance with Section 7.02(b), regardless of the source from which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing any material pursuant to a request made under Section 7.02(b).
Section 7.03 Reports
by Trustee.
(a) The
Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant
to the Trust Indenture Act at the times and in the manner provided pursuant thereto. If required by Section 313(a) of the Trust
Indenture Act, the Trustee shall, within 60 days after each June 1 following the date of this Indenture, deliver to each Holder,
as provided in Trust Indenture Act Section 313(c), a brief report dated as of such June 1, which complies with the provisions
of such Section 313(a).
(b) A
copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which
any Securities are listed, with the Commission and with the Company as required by Trust Indenture Act Section 313(d) to the
extent applicable. The Company will promptly notify the Trustee when any Securities are listed on any stock exchange.
Section 7.04 Reports
by Company.
The Company will:
(a) To
the extent the Company is then required to file period reports under the Exchange Act with the Commission, file with the Trustee, within
30 days after the Company is required to file the same with the Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934; or, if the Company is not required to file information, documents or reports pursuant to either of
said Sections, then it will file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time
to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934 in respect of a security listed and registered on a national securities exchange
as may be prescribed from time to time in such rules and regulations;
(b) file
with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the Company with the conditions and covenants of this Indenture
as may be required from time to time by such rules and regulations; and
(c) transmit
by mail to all Securityholders, as their names and addresses appear in the Security Register, within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and reports required to be filed by the Company pursuant to paragraphs
(a) and (b) of this Section as may be required by rules and regulations prescribed from time to time by the Commission.
Delivery of reports, information
and documents to the Trustee under this Section 7.04 is for informational purposes only, and the Trustee’s receipt of the foregoing
shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including
the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely on Officers’ Certificates).
The Trustee shall have no responsibility for the filing, timeliness or content of reports.
Article VIII. CONSOLIDATION,
MERGER, CONVEYANCE OR TRANSFER
Section 8.01 Company
May Consolidate, etc., Only on Certain Terms.
The Company shall not consolidate
with or merge into any other corporation or convey or transfer all or substantially all of its properties and assets and the properties
and assets of the Subsidiaries, taken as a whole, to any Person, unless;
(a) either
the Company shall be the continuing corporation, or the corporation formed by such consolidation or into which the Company is merged or
the Person which acquires by conveyance or transfer all or substantially all of the properties and assets of the Company and the Subsidiaries,
taken as a whole, shall be a corporation organized and existing under the laws of the United States of America or any State or the District
of Columbia, and 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, premium, if any, and interest, if any, on all the Securities and the performance
of every covenant of this Indenture on the part of the Company to be performed or observed;
(b) immediately
after giving effect to such transaction, no Event of Default, or 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
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel to the effect that any such consolidation,
merger, conveyance or transfer and any assumption permitted or required by this Article complies with the provisions of this Article,
that all conditions precedent herein provided for relating to such transaction have been complied with, and, if any supplement indenture
is required in connection with such transaction, that such supplemental Indenture complies with the applicable provisions of this Indenture,
that all conditions precedent herein provided for relating to such transaction have been complied with and that such supplemental Indenture
is the legal, valid and binding obligation of the successor corporation enforceable against it in accordance with its terms.
Section 8.02 Successor
Corporation Substituted.
Upon any consolidation or
merger, or any conveyance or transfer of all or substantially all of the properties and assets of the Company in accordance with Section 8.01,
the successor corporation formed by such consolidation or into which the Company is merged or the Person to which such conveyance or transfer
is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the
same effect as if such successor corporation had been named as the Company herein and the Company shall thereupon be released from all
obligations hereunder and under the Securities. Such successor corporation thereupon may cause to be signed and may issue any or all of
the Securities issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon
the order of such successor corporation, instead of the Company, and subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any Securities which previously shall have been signed and delivered by the
officers of the Company to the Trustee for authentication, and any Securities which such successor corporation thereafter shall cause
to be signed and delivered to the Trustee for that purpose. All of the Securities so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution hereof.
In case of any such consolidation,
merger, sale or conveyance such changes in phraseology and form (but not in substance) may be made in the Securities thereafter to be
issued as may be appropriate.
Article IX. SUPPLEMENTAL
INDENTURES
Section 9.01 Supplemental
Indentures Without Consent of Securityholders.
Without the consent of the
Holders of any Securities, the Company and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act as in force at the date of execution thereof), in form satisfactory
to the Trustee, for any of the following purposes:
(a) to
evidence the succession of another corporation to the Company, or successive successions, and the assumption by any such successor of
the covenants, agreements and obligations of the Company pursuant to Article 8 hereof; or
(b) to
add to the covenants of the Company such further covenants, restrictions or conditions for the protection of the Holders of the Securities
of any or all series as the Company shall consider to be for the protection of the Holders of the Securities of any or all series or to
surrender any right or power herein conferred upon the Company (and if such covenants or the surrender of such right or power are to be
for the benefit of less than all series of Securities, stating that such covenants are expressly being included or such surrenders are
expressly being made solely for the benefit of one or more specified series); or
(c) to
cure any ambiguity, to correct or supplement any provision herein which may be inconsistent with any other provision herein or in any
supplemental indenture, or to make any other provisions with respect to matters or questions arising under this Indenture that do not
adversely affect the interests of the Holders of Securities of any series in any material respect as set forth in an Officers’ Certificate
delivered to the Trustee; or
(d) to
add to this Indenture such provisions as may be expressly permitted by the Trust Indenture Act, excluding, however, the provisions referred
to in Section 316(a)(2) of the Trust Indenture Act as in effect at the date as of which this instrument is executed or any corresponding
provision in any similar federal statute hereafter enacted; or
(e) to
add guarantors or co-obligors with respect to any series of Securities; or
(f) to
secure any series of Securities; or
(g) to
establish any form of Security, as provided in Article 2 hereof, and to provide for the issuance of any series of Securities, as
provided in Article 3 hereof, and to set forth the terms thereof, and/or to add to the rights of the Holders of the Securities of
any series; or
(h) to
evidence and provide for the acceptance of appointment by another corporation as a successor Trustee hereunder with respect to one or
more series of Securities and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, pursuant to Section 6.11 hereof; or
(i) to
add any additional Events of Default in respect of the Securities of any or all series (and if such additional Events of Default are to
be in respect of less than all series of Securities, stating that such Events of Default are expressly being included solely for the benefit
of one or more specified series); or
(j) to
comply with the requirements of the Commission in connection with the qualification of this Indenture under the Trust Indenture Act as
if (or when) applicable to the Company; or
(k) to
make any change in any series of Securities that does not adversely affect in any material respect the interests of the Holders of such
Securities as set forth in an Officers’ Certificate delivered to the Trustee.
Section 9.02 Supplemental
Indentures With Consent of Securityholders.
With the consent of the Holders
of not less than a majority in principal amount of the Outstanding Securities of each series affected by such supplemental indenture or
indentures, by Act of said Holders delivered to the Company and the Trustee, the Company 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 series under this Indenture; provided, however , that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Security affected thereby:
(a) change
the Scheduled Maturity Date or the stated payment date of any payment of premium or interest payable on any Security, or reduce the principal
amount thereof, or any amount of interest or premium payable thereon, or
(b) change
the method of computing the amount of principal of any Security or any interest payable thereon on any date, or change any Place of Payment
where, or the coin or currency in which, any Security or any payment of premium or interest thereon is payable, or
(c) impair
the right to institute suit for the enforcement of any payment described in clauses (a) or (b) on or after the same shall become
due and payable, whether at Maturity or, in the case of redemption or repayment, on or after the Redemption Date or the Repayment Date,
as the case may be; or
(d) change
or waive the redemption or repayment provisions of any series;
(e) reduce
the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any waiver of compliance with certain provisions of this Indenture
or certain defaults hereunder and their consequences, provided for in this Indenture; or
(f) modify
any of the provisions of this Section or Section 5.13, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby;
provided, however , that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references
to “the Trustee” and concomitant changes in this Section, or the deletion of this proviso, in accordance with the requirements
of Sections 6.11 and 9.01(h); or
(g) adversely
affect the ranking or priority of any series;
(h) release
any guarantor or co-obligor from any of its obligations under its guarantee of the Securities or this Indenture, except in compliance
with the terms of this Indenture; or
(i) waive
any Event of Default pursuant to Section 5.01(a), Section 5.01(b) or Section 5.01(c) hereof with respect to such
Security.
A supplemental indenture that
changes or eliminates any covenant or other provision of this Indenture that has expressly been included solely for the benefit of one
or more particular series of Securities, or that modifies the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary
for any Act of Securityholders under this Section 9.02 to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such Act shall approve the substance thereof.
Section 9.03 Execution
of Supplemental Indentures.
Upon request of the
Company and upon filing with the Trustee of evidence of an Act of Securityholders as aforementioned, the Trustee shall join with the
Company in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s own rights,
powers, trusts, 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. In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon, an
Officers’ Certificate and an Opinion of Counsel each stating that the execution of such supplemental indenture is authorized
or permitted by this Indenture , with respect to Section 9.01(k), does not adversely affect in any materials respects the
interests of the Holders, and that such supplemental indenture is the legal, valid and binding obligation of the Company,
enforceable against it in accordance with its terms.
Section 9.04 Effect
of Supplemental Indentures.
Upon the execution of any
supplemental indenture under this Article, this Indenture shall be and be deemed to be modified and amended in accordance therewith, and
such supplemental indenture shall form a part of this Indenture for all purposes; and the respective rights, limitation of rights, duties,
powers, trusts and immunities under this Indenture of the Trustee, the Company, and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be determined, exercised and enforced thereunder to the extent provided therein.
Section 9.05 Conformity
With Trust Indenture Act.
Every supplemental indenture
executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect as if (or when)
applicable to the Company.
Section 9.06 Reference
in Securities to Supplemental Indentures.
Securities of any series authenticated
and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities so modified as to conform, in the opinion of the Trustee and the Company, to any modification of this Indenture
contained in any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee
in exchange for Outstanding Securities.
Article X. COVENANTS
Section 10.01 Payment
of Principal, Premium and Interest.
With respect to each series
of Securities, the Company will duly and punctually pay or cause to be paid the principal, premium, if any, and interest, if any, on such
Securities in accordance with their terms and this Indenture, and will duly comply with all the other terms, agreements and conditions
contained in the Indenture for the benefit of the Securities of such series.
Section 10.02 Maintenance
of Office or Agency.
So long as any of the Securities
remain outstanding, the Company will maintain an office or agency in each Place of Payment where Securities may be presented or surrendered
for payment, where Securities may be surrendered for registration of transfer or exchange, and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The Company will give prompt written notice to the Trustee of the
location, and of any change in the location, of such office or agency. If at any time the Company shall fail to maintain such office or
agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee its agent to receive all such presentations,
surrenders, notices and demands.
Section 10.03 Money
or Security Payments to Be Held in Trust.
If the Company shall at any
time act as its own Paying Agent for any series of Securities, it will, on or before each due date of the principal, premium, if any,
or interest, if any, on any of the Securities of such series, segregate and hold in trust for the benefit of the Holders of the Securities
of such series a sum sufficient to pay such principal, premium, or interest so becoming due until such sums shall be paid to such Holders
of such Securities or otherwise disposed of as herein provided, and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, on or prior to each due date of the principal,
premium, if any, or interest, if any, on any Securities of such series, deposit with a Paying Agent a sum sufficient to pay such principal,
premium, or interest so becoming due, such sum to be held in trust for the benefit of the Holders of the Securities entitled to the same
and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each
Paying Agent other than the Trustee for any series of Securities to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will
(a) hold
all sums held by it for the payment of principal, premium, if any, or interest, if any, on Securities of such series in trust for the
benefit of the Holders of the Securities entitled thereto until such sums shall be paid to such Holders of such Securities or otherwise
disposed of as herein provided;
(b) give
the Trustee notice of any default by the Company (or any other obligor upon the Securities of such series) in the making of any such payment
of principal, premium, if any, or interest, if any, on the Securities of such series; and
(c) at
any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may, at any time,
for the purpose of obtaining the satisfaction and discharge of this Indenture with respect to any series of Securities or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying
Agent in respect of each and every series of Securities as to which it seeks to discharge this Indenture or, if for any other purpose,
all sums so held in trust by the Company in respect of all Securities, such sums to be held by the Trustee upon the same trusts as those
upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Section 10.04 Certificate
to Trustee.
The Company will deliver to
the Trustee within 120 days after the end of each fiscal year, an Officers’ Certificate, one of whose signatories shall be
the Company’s principal executive, accounting or financial officer, stating that in the course of the performance by the signers
of their duties as officers of the Company they would normally have knowledge of any default by the Company in the performance of any
of its covenants, conditions or agreements contained herein (without regard to any period of grace or requirement of notice provided hereunder),
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.
Section 10.05 Corporate
Existence.
Subject to Article 8
the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence.
Article XI. REDEMPTION
OF SECURITIES
Section 11.01 Applicability
of Article.
The Company may reserve the
right to redeem and pay before the Scheduled Maturity Date all or any part of the Securities of any series, either by optional redemption,
sinking or purchase fund or analogous obligation or otherwise, by provision therefor in the form of Security for such series established
and approved pursuant to Section 2.02 and 2.03 or as otherwise provided in Section 3.01, and on such terms as are specified
in such form or in the indenture supplemental hereto with respect to Securities of such series as provided in Section 3.01. Redemption
of Securities of any series shall be made in accordance with the terms of such Securities and, to the extent that this Article does
not conflict with such terms, the succeeding Sections of this Article.
Section 11.02 Election
to Redeem; Notice to Trustee.
In case of any redemption
at the election of the Company, the Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter
notice shall be satisfactory to the Trustee) notify the Trustee in writing of such Redemption Date and of the principal amount of Securities
of such series to be redeemed. In the case of any redemption of Securities (a) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this Indenture, or (b) pursuant to an election of the Company
which is subject to a condition specified in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers’ Certificate evidencing compliance with such restriction or condition.
Section 11.03 Selection
of Securities to be Redeemed.
If fewer than all the Securities
of any series are to be redeemed, the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption
Date by the Company, from the Outstanding Securities of such series not previously called for redemption, on a pro rata basis, by lot
or by such other method (provided that, in the case of Securities issued in global form such selection shall be based on the method required
by the Depository), which method may include provision for the selection for redemption of portions of the principal of Securities of
such series of a denomination larger than the minimum authorized denomination for Securities of that series. Unless otherwise provided
in the terms of a particular series of Securities, the portions of the principal of Securities so selected for partial redemption shall
be equal to the minimum authorized denomination of the Securities of such series, or an integral multiple thereof, and the principal amount
which remains outstanding shall not be less than the minimum authorized denomination for Securities of such series.
The Company shall promptly
notify the Trustee in writing of the Securities selected for redemption and, in the case of any Security selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Security
redeemed or to be redeemed only in part, to the portion of the principal of such Security which has been or is to be redeemed.
Section 11.04 Notice
of Redemption.
Notice of redemption shall
be given by first-class mail, postage prepaid, mailed (or in the case of global notes, by electronic delivery in accordance with the Depository’s
procedures) not fewer than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, at
his or her address appearing in the Security Register on the applicable Record Date.
All notices of redemption
shall state:
| (2) | the Redemption Price, or if not then ascertainable, the manner of calculation thereof; |
| (3) | if fewer than all Outstanding Securities of any series are to be redeemed, the identification (and, in
the case of partial redemption, the respective principal amounts) of the Securities to be redeemed, from the Holder to whom the notice
is given and that on and after the date fixed for redemption, upon surrender of such Security, a new Security or Securities of the same
series in the aggregate principal amount equal to the unredeemed portion thereof will be issued in accordance with Section 11.07; |
| (4) | that on the Redemption Date the Redemption Price will become due and payable upon each such Security,
and that interest, if any, thereon shall cease to accrue from and after said date; |
| (5) | the place where such Securities are to be surrendered for payment of the Redemption Price, which shall
be the office or agency maintained by the Company in the Place of Payment pursuant to Section 10.02 hereof; and |
| (6) | that the redemption is on account of a sinking or purchase fund, or other analogous obligation, if that
be the case. |
Notice of redemption of Securities
to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request, made at least five Business Days
prior to the date on which notice is to be given in the form of an Officers’ Certificate, by the Trustee in the name and at the
expense of the Company.
Section 11.05 Deposit
of Redemption Price.
On or prior to any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 10.03) an amount of money, in immediately available funds, sufficient to pay the Redemption
Price of all the Securities which are to be redeemed on that date.
Section 11.06 Securities
Payable on Redemption Date.
Notice of Redemption having
been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified and from and after such date (unless the Company shall default in the payment of the Redemption Price) such Securities
shall cease to bear interest. Upon surrender of such Securities for redemption in accordance with the notice, such Securities shall be
paid by the Company at the Redemption Price. Any installment of interest due and payable on or prior to the Redemption Date shall be payable
to the Holders of such Securities registered as such on the relevant Record Date according to the terms and the provisions of Section 3.07
above; unless, with respect to an Interest Payment Date that falls on a Redemption Date, such Securities provide that interest due on
such date is to be paid to the Person to whom principal is payable.
If any Security called for
redemption shall not be so paid upon surrender thereof for redemption, the principal shall, until paid, bear interest from the Redemption
Date at the rate borne by the Security, or as otherwise provided in such Security.
Section 11.07 Securities
Redeemed in Part.
Any Security that is to be
redeemed only in part shall be surrendered at the office or agency maintained by the Company in the Place of Payment pursuant to Section 10.02
hereof with respect to that series (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing) and
the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Security without service charge and at
the expense of the Company, a new Security or Securities of the same series, tenor, terms and Scheduled Maturity Date, of any authorized
denomination as requested by such Holders in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal
of the Security so surrendered.
Section 11.08 Provisions
with Respect to any Sinking Funds.
Unless the form or terms of
any series of Securities shall provide otherwise, in lieu of making all or any part of any mandatory sinking fund payment with respect
to such series of Securities in cash, the Company may at its option (a) deliver to the Trustee for cancellation any Securities of
such series theretofore acquired by the Company, or (b) receive credit for any Securities of such series (not previously so credited)
acquired or redeemed by the Company (other than through operation of a mandatory sinking fund) and theretofore delivered to the Trustee
for cancellation, and if it does so then (i) Securities so delivered or credited shall be credited at the applicable sinking fund
Redemption Price with respect to Securities of such series, and (ii) on or before the 60th day next preceding each
sinking fund Redemption Date with respect to such series of Securities, the Company will deliver to the Trustee (A) an Officers’
Certificate specifying the portions of such sinking fund payment to be satisfied by payment of cash and by the delivery or credit of Securities
of such series acquired or redeemed by the Company, and (B) such Securities, to the extent not previously surrendered. Such Officers’
Certificate shall also state the basis for any such credit and that the Securities for which the Company elects to receive credit have
not been previously so credited and were not acquired by the Company through operation of the mandatory sinking fund, if any, provided
with respect to such Securities and shall also state that no Event of Default with respect to Securities of such series has occurred and
is continuing. All Securities so delivered to the Trustee shall be canceled by the Trustee and no Securities shall be authenticated in
lieu thereof.
If the sinking fund payment
or payments (mandatory or optional) with respect to any series of Securities made in cash plus any unused balance of any preceding sinking
fund payments with respect to Securities of such series made in cash shall exceed $50,000 (or a lesser sum if the Company shall so request),
unless otherwise provided by the terms of such series of Securities, that cash shall be applied by the Trustee on the sinking fund Redemption
Date with respect to Securities of such series next following the date of such payment to the redemption of Securities of such series
at the applicable sinking fund Redemption Price with respect to Securities of such series, together with accrued interest, if any, to
the date fixed for redemption, with the effect provided in Section 11.06. The Trustee shall select, in the manner provided in Section 11.03,
for redemption on such sinking fund Redemption Date a sufficient principal amount of Securities of such series to utilize that cash and
shall thereupon cause notice of redemption of the Securities of such series for the sinking fund to be given in the manner provided in
Section 11.04 (and with the effect provided in Section 11.06) for the redemption of Securities in part at the option of the
Company. Any sinking fund moneys not so applied or allocated by the Trustee to the redemption of Securities of such series shall be added
to the next cash sinking fund payment with respect to Securities of such series received by the Trustee and, together with such payment,
shall be applied in accordance with the provisions of this Section 11.08. Any and all sinking fund moneys with respect to Securities
of any series held by the Trustee at the Maturity of Securities of such series, and not held for the payment or redemption of particular
Securities of such series, shall be applied by the Trustee, together with other moneys, if necessary, to be deposited sufficient for the
purpose, to the payment of the principal of the Securities of such series at Maturity. On or before each sinking fund Redemption Date
provided with respect to Securities of any series, the Company shall pay to the Trustee in cash a sum equal to all accrued interest, if
any, to the date fixed for redemption on Securities to be redeemed on such sinking fund Redemption Date pursuant to this Section 11.08.
The Trustee shall not
redeem any Securities with sinking fund moneys or give any notice of redemption of Securities by operation of the applicable sinking
fund during the continuance of a default in payment of interest on Securities of such series or of any Event of Default with respect
to such series, except that if the notice of redemption of any Securities shall theretofore have been mailed in accordance with the
provisions hereof, the Trustee shall redeem such Securities if cash sufficient for that purpose shall be deposited with the Trustee
for that purpose in accordance with the terms of this Article 11. Except as aforesaid, any moneys in the sinking fund with
respect to Securities of any series at the time when any such default or Event of Default with respect to such series shall occur,
and any moneys thereafter paid into such sinking fund shall, during the continuance of such default or Event of Default with respect
to such series, be held as security for the payment of all Securities of such series; provided, however, that in case such default
or Event of Default with respect to such series shall have been cured or waived as provided herein, such moneys shall thereafter be
applied on the next sinking fund payment date on which such moneys may be applied pursuant to the provisions of this
Section 11.08.
Article XII. REPAYMENT
AT OPTION OF HOLDERS
Section 12.01 Applicability
of Article.
Repayment of Securities of
any series before their Scheduled Maturity Date at the option of Holders thereof shall be made in accordance with the terms of such Securities
and (except as otherwise specified as contemplated by Section 3.01 for Securities of any series) in accordance with this Article.
Section 12.02 Repayment
of Securities.
Securities of any series subject
to repayment in whole or in part at the option of the Holders thereof will, unless otherwise provided in the terms of such Securities,
be repaid at a price equal to the principal amount thereof, together with interest thereon accrued to the Repayment Date specified in
the terms of such Securities. On or before the Repayment Date, the Company will deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.03) an amount of money, in immediately
available funds, sufficient to pay the Repayment Price of all the Securities which are to be repaid on such date.
Section 12.03 Exercise
of Option.
Securities of any series subject
to repayment at the option of the Holders thereof will contain an “Option to Elect Repayment” form on the reverse of
such Securities. To be repaid at the option of the Holder, any Security so providing for such repayment, with the “Option to
Elect Repayment” form on the reverse of such Security duly completed by the Holder, must be received by the Company at the Place
of Payment therefor specified in the terms of such Security (or at such other place or places of which the Company shall from time to
time notify the Holders of such Securities) not earlier than 30 days nor later than 15 days prior to the Repayment Date. If
less than the entire principal amount of such Security is to be repaid in accordance with the terms of such Security, the principal amount
of such Security to be repaid, in increments of $1,000 unless otherwise specified in the terms of such Security, and the denomination
or denominations of the Security or Securities to be issued to the Holder for the portion of the principal amount of such Security surrendered
that is not to be repaid must be specified. The principal amount of any Security providing for repayment at the option of the Holder thereof
may not be repaid in part, if, following such repayment, the unpaid principal amount of such Security would be less than the minimum authorized
denomination of Securities of the series of which such Security to be repaid is a part. Except as otherwise may be provided by the terms
of any Security providing for repayment at the option of the Holder thereof, exercise of the repayment option by the Holder shall be irrevocable
unless waived by the Company.
Section 12.04 When
Securities Presented for Repayment Become Due and Payable.
If Securities of any series
providing for repayment at the option of the Holders thereof shall have been surrendered as provided in this Article and as provided
by the terms of such Securities, such Securities or the portions thereof, as the case may be, to be repaid shall become due and payable
and shall be paid by the Company on the Repayment Date therein specified, and on and after such Repayment Date (unless the Company shall
default in the payment of such Securities on such Repayment Date) interest on such Securities or the portions thereof, as the case may
be, shall cease to accrue.
Section 12.05 Securities
Repaid in Part.
Upon surrender of any Security
which is to be repaid in part only, the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Security,
without service charge and at the expense of the Company, a new Security or Securities of the
same series, tenor, terms and Scheduled Maturity Date, of any authorized denomination specified by the Holder, in an aggregate principal
amount equal to and in exchange for the portion of the principal of such Security so surrendered which is not to be repaid.
(signature page follows)
IN WITNESS WHEREOF,
the parties hereto have caused this Indenture to be duly executed and attested and the Company has affixed its corporate seal hereto;
all as of the day and year first above written.
| |
HANOVER BANCORP, INC. |
| |
|
| |
By: |
|
| |
Name: |
| |
Title: |
| |
[●]
as Trustee |
| |
|
| |
By: |
|
| |
Name: |
| |
Title: |
[Signature Page –
Trust Indenture]
Exhibit 4.10
HANOVER
Bancorp, Inc.
SENIOR DEBT INDENTURE
DATED AS OF ,
20
,
TRUSTEE
TABLE OF CONTENTS
| |
|
Page Number |
| ARTICLE I |
DEFINITIONS
AND INCORPORATION BY REFERENCE |
1 |
| Section 1.1 |
Definitions |
1 |
| Section 1.2 |
Other Definitions |
4 |
| Section 1.3 |
Incorporation
by Reference of Trust Indenture Act |
4 |
| Section 1.4 |
Rules of
Construction |
4 |
| ARTICLE II |
THE SECURITIES |
5 |
| Section 2.1 |
Issuable
in Series |
5 |
| Section 2.2 |
Establishment
of Terms of Series of Securities |
5 |
| Section 2.3 |
Execution
and Authentication |
6 |
| Section 2.4 |
Registrar
and Paying Agent |
7 |
| Section 2.5 |
Paying Agent
to Hold Money in Trust |
7 |
| Section 2.6 |
Securityholder
Lists |
7 |
| Section 2.7 |
Transfer
and Exchange |
8 |
| Section 2.8 |
Mutilated,
Destroyed, Lost and Stolen Securities |
8 |
| Section 2.9 |
Outstanding
Securities |
8 |
| Section 2.10 |
Treasury
Securities |
9 |
| Section 2.11 |
Temporary
Securities |
9 |
| Section 2.12 |
Cancellation |
9 |
| Section 2.13 |
Defaulted
Interest |
9 |
| Section 2.14 |
Global Securities |
9 |
| Section 2.15 |
CUSIP Numbers |
10 |
| ARTICLE III |
REDEMPTION |
10 |
| Section 3.1 |
Notice to
Trustee |
10 |
| Section 3.2 |
Selection
of Securities to be Redeemed |
10 |
| Section 3.3 |
Notice of
Redemption |
11 |
| Section 3.4 |
Effect of
Notice of Redemption |
11 |
| Section 3.5 |
Deposit
of Redemption Price |
11 |
| Section 3.6 |
Securities
Redeemed in Part |
11 |
| ARTICLE IV |
COVENANTS |
11 |
| Section 4.1 |
Payment
of Principal and Interest |
11 |
| Section 4.2 |
SEC Reports |
12 |
| Section 4.3 |
Compliance
Certificate |
12 |
| Section 4.4 |
Stay, Extension
and Usury Laws |
12 |
| Section 4.5 |
Corporate
Existence |
12 |
| Section 4.6 |
Taxes |
12 |
| ARTICLE V |
SUCCESSORS |
12 |
| Section 5.1 |
When Company
May Merge, Etc. |
12 |
| Section 5.2 |
Successor
Corporation Substituted |
13 |
| ARTICLE VI |
DEFAULTS
AND REMEDIES |
13 |
| Section 6.1 |
Events of
Default |
13 |
| Section 6.2 |
Acceleration
of Maturity; Rescission and Annulment |
14 |
| Section 6.3 |
Collection
of Indebtedness and Suits for Enforcement by Trustee |
14 |
| Section 6.4 |
Trustee
May File Proofs of Claim |
15 |
| Section 6.5 |
Trustee
May Enforce Claims Without Possession of Securities |
15 |
| Section 6.6 |
Application
of Money Collected |
15 |
| Section 6.7 |
Limitation
on Suits |
16 |
| Section 6.8 |
Unconditional
Right of Holders to Receive Principal and Interest |
16 |
| Section 6.9 |
Restoration
of Rights and Remedies |
16 |
| Section 6.10 |
Rights and
Remedies Cumulative |
16 |
| Section 6.11 |
Delay or
Omission Not Waiver |
16 |
| Section 6.12 |
Control
by Holders |
17 |
| Section 6.13 |
Waiver of
Past Defaults |
17 |
| Section 6.14 |
Undertaking
For Costs |
17 |
| |
|
Page Number |
| ARTICLE VII |
TRUSTEE |
17 |
| Section 7.1 |
Duties of Trustee |
17 |
| Section 7.2 |
Rights of Trustee |
18 |
| Section 7.3 |
Individual Rights of
Trustee |
19 |
| Section 7.4 |
Trustee’s Disclaimer |
19 |
| Section 7.5 |
Notice of Defaults |
19 |
| Section 7.6 |
Reports by Trustee to
Holders |
19 |
| Section 7.7 |
Compensation and Indemnity |
19 |
| Section 7.8 |
Replacement of Trustee |
20 |
| Section
7.9 |
Successor Trustee by
Merger, Etc. |
20 |
| Section
7.10 |
Eligibility; Disqualification |
20 |
| Section
7.11 |
Referential Collection
of Claims Against Company |
21 |
| ARTICLE
VIII |
SATISFACTION AND DISCHARGE;
DEFEASANCE |
21 |
| Section
8.1 |
Satisfaction and Discharge
of Indenture |
21 |
| Section
8.2 |
Application of Trust
Funds; Indemnification |
21 |
| Section
8.3 |
Legal Defeasance of
Securities of Any Series |
22 |
| Section
8.4 |
Covenant Defeasance |
23 |
| Section
8.5 |
Repayment to Company |
23 |
| ARTICLE
IX |
AMENDMENTS AND WAIVERS |
23 |
| Section
9.1 |
Without Consent of Holders |
23 |
| Section
9.2 |
With Consent of Holders |
24 |
| Section
9.3 |
Limitations |
24 |
| Section
9.4 |
Compliance with Trust
Indenture Act |
24 |
| Section
9.5 |
Revocation and Effect
of Consents |
24 |
| Section
9.6 |
Notation on or Exchange
of Securities |
25 |
| Section
9.7 |
Trustee Protected |
25 |
| ARTICLE
X |
MISCELLANEOUS |
25 |
| Section
10.1 |
Trust Indenture Act
Controls |
25 |
| Section
10.2 |
Notices |
25 |
| Section
10.3 |
Communication by Holders
with Other Holders |
26 |
| Section
10.4 |
Certificate and Opinion
as to Conditions Precedent |
26 |
| Section
10.5 |
Statements Required
in Certificate or Opinion |
26 |
| Section
10.6 |
Rules by Trustee
and Agents |
26 |
| Section
10.7 |
Legal Holidays |
26 |
| Section
10.8 |
No Recourse Against
Others |
26 |
| Section
10.9 |
Counterparts |
26 |
| Section
10.10 |
Governing Laws |
27 |
| Section
10.11 |
No Adverse Interpretation
of Other Agreements |
27 |
| Section
10.12 |
Successors |
27 |
| Section
10.13 |
Severability |
27 |
| Section
10.14 |
Table of Contents, Headings,
Etc. |
27 |
| ARTICLE
XI |
SINKING FUNDS |
27 |
| Section
11.1 |
Applicability of Article |
27 |
| Section
11.2 |
Satisfaction of Sinking
Fund Payments with Securities |
27 |
| Section
11.3 |
Redemption of Securities
for Sinking Fund |
28 |
CROSS REFERENCE TABLE
Trust
Indenture Act
Section |
|
|
|
Indenture
Section |
|
| Section 310 |
|
(a)(1) |
|
7.10 |
|
| |
|
(a)(2) |
|
7.10 |
|
| |
|
(a)(3) |
|
N/A |
|
| |
|
(a)(4) |
|
N/A |
|
| |
|
(a)(5) |
|
7.10 |
|
| |
|
(b) |
|
7.10 |
|
| Section 311 |
|
(a) |
|
7.11 |
|
| |
|
(b) |
|
7.11 |
|
| |
|
(c) |
|
N/A |
|
| Section 312 |
|
(a) |
|
2.6 |
|
| |
|
(b) |
|
10.3 |
|
| |
|
(c) |
|
10.3 |
|
| Section 313 |
|
(a) |
|
7.6 |
|
| |
|
(b)(1) |
|
7.6 |
|
| |
|
(b)(2) |
|
7.6 |
|
| |
|
(c)(1) |
|
7.6 |
|
| |
|
(d) |
|
7.6 |
|
| Section 314 |
|
(a) |
|
4.2, 10.5 |
|
| |
|
(b) |
|
N/A |
|
| |
|
(c)(1) |
|
10.4 |
|
| |
|
(c)(2) |
|
10.4 |
|
| |
|
(c)(3) |
|
N/A |
|
| |
|
(d) |
|
N/A |
|
| |
|
(e) |
|
10.5 |
|
| |
|
(f) |
|
N/A |
|
| Section 315 |
|
(a) |
|
7.1 |
|
| |
|
(b) |
|
7.5 |
|
| |
|
(c) |
|
7.1 |
|
| |
|
(d) |
|
7.1 |
|
| |
|
(e) |
|
6.14 |
|
| Section 316 |
|
(a) |
|
2.10 |
|
| |
|
(a)(1)(A) |
|
6.12 |
|
| |
|
(a)(1)(B) |
|
6.13 |
|
| |
|
(b) |
|
6.8 |
|
| Section 317 |
|
(a)(1) |
|
6.3 |
|
| |
|
(a)(2) |
|
6.4 |
|
| |
|
(b) |
|
2.5 |
|
| Section 318 |
|
(a) |
|
10.1 |
|
| * |
This Cross Reference Table shall not, for any purpose,
be deemed to be part of the Indenture. |
Senior Debt Indenture dated as of
, 20 between Hanover Bancorp, Inc., a New York
corporation (“Company”), and ,
as trustee (“Trustee”).
Each party agrees as follows for the benefit
of the other party and for the equal and ratable benefit of the Holders of the Securities issued under this Indenture:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
“Additional Amounts” means any additional
amounts which are required hereby or by any Security, under circumstances specified herein or therein, to be paid by the Company in respect
of certain taxes imposed on Holders specified herein or therein and which are owing to such Holders.
“Affiliate” of any specified person
means any other person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified
person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlled
by” and “under common control with”), as used with respect to any person, shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of such person, whether through the ownership of voting securities
or by agreement or otherwise.
“Agent” means any Registrar, Paying
Agent or Service Agent.
“Authorized Newspaper” means a newspaper
in an official language of the country of publication customarily published at least once a day for at least five days in each calendar
week and of general circulation in the place in connection with which the term is used. If it shall be impractical in the opinion of
the Trustee to make any publication of any notice required hereby in an Authorized Newspaper, any publication or other notice in lieu
thereof that is made or given by the Trustee shall constitute a sufficient publication of such notice.
“Bearer Security” means any Security,
including any interest coupon appertaining thereto, that does not provide for the identification of the Holder thereof.
“Board of Directors” means the Board
of Directors of the Company or any duly authorized committee thereof.
“Board Resolution” means a copy of
a resolution certified by the Secretary or an Assistant Secretary of the Company to have been adopted by the Board of Directors or pursuant
to authorization by the Board of Directors and to be in full force and effect on the date of the certificate and delivered to the Trustee.
“Business Day” means, unless otherwise
provided by Board Resolution, Officers’ Certificate or supplemental indenture hereto for a particular Series, any day except a
Saturday, Sunday or a legal holiday in the ________, on which banking institutions are authorized or required by law, regulation or
executive order to close.
“Capital Stock” means any and all
shares, interests, participations, rights or other equivalents (however designated) of corporate stock.
“Company” means the party named as
such above until a successor replaces it and thereafter means the successor.
“Company Order” means a written order
signed in the name of the Company by two Officers, one of whom must be the Company’s principal executive officer, principal financial
officer or principal accounting officer.
“Company Request” means a written
request signed in the name of the Company by its Chief Executive Officer, the President or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee.
“Corporate Trust Office” means the
office of the Trustee at which at any particular time its corporate trust business shall be principally administered.
“Default” means any event which is,
or after notice or passage of time or both would be, an Event of Default.
“Depository” means, with respect
to the Securities of any Series issuable or issued in whole or in part in the form of one or more Global Securities, the person
designated as Depository for such Series by the Company, which Depository shall be a clearing agency registered under the Exchange
Act; and if at any time there is more than one such person, “Depository” as used with respect to the Securities of any Series shall
mean the Depository with respect to the Securities of such Series.
“Discount Security” means any Security
that provides for an amount less than the stated principal amount thereof to be due and payable upon declaration of acceleration of the
Stated Maturity thereof pursuant to Section 6.2.
“Dollars” and “$” means
the currency of the United States of America.
“Exchange Act” means the Securities
Exchange Act of 1934, as amended.
“GAAP” means generally accepted accounting
principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity
as have been approved by a significant segment of the accounting profession, which are in effect as of the date of determination.
“Global Security” or “Global
Securities” means a Security or Securities, as the case may be, in the form established pursuant to Section 2.2 evidencing
all or part of a Series of Securities, issued to the Depository for such Series or its nominee, and registered in the name
of such Depository or nominee.
“Holder” or “Securityholder”
means a person in whose name a Security is registered or the holder of a Bearer Security.
“Indenture” means this Senior Debt
Indenture as amended or supplemented from time to time and shall include the form and terms of particular Series of Securities established
as contemplated hereunder.
“interest” with respect to any Discount
Security which by its terms bears interest only after Maturity, means interest payable after Maturity.
“Maturity,” when used with respect
to any Security or installment of principal thereof, means the date on which the principal of such Security or such installment of principal
becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption,
or otherwise.
“Officer” means the Chief Executive
Officer, the President, any Vice President, the Treasurer, the Secretary, any Assistant Treasurer or any Assistant Secretary of the Company.
“Officers’ Certificate” means
a certificate signed by two Officers, one of whom must be the Company’s principal executive officer, principal financial officer
or principal accounting officer.
“Opinion of Counsel” means a written
opinion of legal counsel who is reasonably acceptable to the Trustee. The counsel may be an employee of or counsel to the Company.
“person” means any individual, corporation,
partnership, joint venture, association, limited liability company, joint-stock company, trust, unincorporated organization or government
or any agency or political subdivision thereof.
“principal” or “principal amount”
of a Security means the principal amount of the Security plus, when appropriate, the premium, if any, on, and any Additional Amounts
in respect of, the Security.
“Responsible Officer” means any officer
of the Trustee in its Corporate Trust Office and also means, with respect to a particular corporate trust matter, any other officer to
whom any corporate trust matter is referred because of his or her knowledge of and familiarity with a particular subject.
“SEC” means the Securities and Exchange
Commission.
“Securities” means the debentures,
notes or other debt instruments of the Company of any Series authenticated and delivered under this Indenture.
“Series” or “Series of
Securities” means each series of debentures, notes or other debt instruments of the Company created pursuant to Sections 2.1 and
2.2 hereof.
“Stated Maturity” when used with
respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the
fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“Subsidiary” of any specified person
means any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is
at the time owned or controlled, directly or indirectly, by such person or one or more of the other Subsidiaries of that person or a
combination thereof.
“TIA” means the Trust Indenture Act
of 1939 (15 U.S. Code Sections 77aaa-77bbbb) as in effect on the date of this Indenture; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, “TIA” means, to the extent required by any such amendment, the Trust Indenture
Act as so amended.
“Trustee” means the person named
as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter “Trustee” shall mean 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 Securities of that Series.
“U.S. Government Obligations”
means securities which are (a) direct obligations of the United States of America for the payment of which its full faith and
credit is pledged or (b) obligations of a person controlled or supervised by and acting as an agency or instrumentality of the
United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United
States of America, and which in the case of (a) and (b) are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such U.S.
Government Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by such
custodian for the account of the holder of a depository receipt, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation evidenced by such depository receipt.
Section 1.2 Other Definitions.
| Term |
Defined in Section |
| “Bankruptcy
Law” |
6.1 |
| “Custodian” |
6.1 |
| “Event
of Default” |
6.1 |
| “Legal
Holiday” |
10.7 |
| “mandatory
sinking fund payment” |
11.1 |
| “optional
sinking fund payment” |
11.1 |
| “Paying
Agent” |
2.4 |
| “Registrar” |
2.4 |
| “Service
Agent” |
2.4 |
| “successor
person” |
5.1 |
Section 1.3 Incorporation by Reference
of Trust Indenture Act. Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and
made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings:
“Commission” means the SEC.
“indenture securities” means the
Securities.
“indenture security holder” means
a Securityholder.
“indenture to be qualified” means
this Indenture.
“indenture trustee” or “institutional
trustee” means the Trustee.
“obligor” on the indenture securities
means the Company and any successor obligor upon the Securities.
All other terms used in this Indenture that are
defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA and not otherwise defined herein
are used herein as so defined.
Section 1.4 Rules Of Construction.
Unless the context otherwise requires:
(a) a
term has the meaning assigned to it;
(b) an
accounting term not otherwise defined has the meaning assigned to it in accordance with generally accepted accounting principles;
(c) references
to “generally accepted accounting principles” and “GAAP” shall mean generally accepted accounting principles,
consistently applied, in effect as of the time when and for the period as to which such accounting principles are to be applied;
(d) “or”
is not exclusive;
(e) words
in the singular include the plural, and in the plural include the singular; and
(f) provisions
apply to successive events and transactions.
ARTICLE II
THE SECURITIES
Section 2.1 Issuable In Series.
The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities
may be issued in one or more Series. All Securities of a Series shall be identical except as may be set forth or determined in the
manner provided in a Board Resolution, supplemental indenture or Officers’ Certificate detailing the adoption of the terms thereof
pursuant to authority granted under a Board Resolution. In the case of Securities of a Series to be issued from time to time, the
Board Resolution, Officers’ Certificate or supplemental indenture detailing the adoption of the terms thereof pursuant to authority
granted under a Board Resolution may provide for the method by which specified terms (such as interest rate, maturity date, record date
or date from which interest shall accrue) are to be determined. Securities may differ between Series in respect of any matters,
provided that all Series of Securities shall be equally and ratably entitled to the benefits of the Indenture.
Section 2.2 Establishment Of
Terms Of Series Of Securities. At or prior to the issuance of any Securities within a Series, the following shall be
established (as to the Series generally, in the case of Subsection 2.2(a) and either as to such Securities within the
Series or as to the Series generally, in the case of Subsections 2.2(b) through 2.2(q)) by or pursuant to a Board
Resolution, and set forth or determined in the manner provided in a Board
Resolution, supplemental indenture or an Officers’ Certificate:
(a) the
title of the Series (which shall distinguish the Securities of that particular Series from the Securities of any other Series);
(b) the
price or prices (expressed as a percentage of the principal amount thereof) at which the Securities of the Series will be issued;
(c) any
limit upon the aggregate principal amount of the Securities of the Series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities
of the Series pursuant to Section 2.7, 2.8, 2.11, 3.6 or 9.6);
(d) the
date or dates on which the principal of the Securities of the Series is payable;
(e) the
rate or rates (which may be fixed or variable) per annum or, if applicable, the method used to determine such rate or rates (including,
but not limited to, any commodity, commodity index, stock exchange index or financial index) at which the Securities of the Series shall
bear interest, if any, the date or dates from which such interest, if any, shall accrue, the date or dates on which such interest, if
any, shall commence and be payable and any regular record date for the interest payable on any interest payment date;
(f) the
place or places where the principal of and interest, if any, on the Securities of the Series shall be payable, where the Securities
of such Series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company
in respect of the Securities of such Series and this Indenture may be served, and the method of such payment, if by wire transfer,
mail or other means;
(g) if
applicable, the period or periods within which, the price or prices at which and the terms and conditions upon which the Securities of
the Series may be redeemed, in whole or in part, at the option of the Company;
(h) the
obligation, if any, of the Company to redeem or purchase the Securities of the Series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and
conditions upon which Securities of the Series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(i) the
dates, if any, on which and the price or prices at which the Securities of the Series will be repurchased by the Company at the
option of the Holders thereof and other detailed terms and provisions of such repurchase obligations;
(j) if
other than denominations of $1,000 and any integral multiple thereof, the denominations in which the Securities of the Series shall
be issuable;
(k) the
forms of the Securities of the Series in bearer or fully registered form (and, if in fully registered form, whether the Securities
will be issuable as Global Securities);
(l) if
other than the entire principal amount thereof, the portion of the principal amount of the Securities of the Series that shall be
payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.2;
(m) the
provisions, if any, relating to any lien, security or encumbrance provided for the Securities of the Series;
(n) any
addition to or change in the Events of Default which applies to any Securities of the Series and any change in the right of the
Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 6.2;
(o) any
addition to or change in the covenants set forth in Articles IV or V which applies to Securities of the Series;
(p) any
other terms of the Securities of the Series (which may modify or delete any provision of this Indenture insofar as it applies to
such Series); and
(q) any
depositories, interest rate calculation agents, exchange rate calculation agents or other agents with respect to Securities of such Series if
other than those appointed herein.
All Securities of any one Series need not
be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by or pursuant
to the Board Resolution, supplemental indenture hereto or Officers’ Certificate referred to above, and the authorized principal
amount of any Series may not be increased to provide for issuances of additional Securities of such Series, unless otherwise provided
in such Board Resolution, supplemental indenture or Officers’ Certificate.
Section 2.3 Execution and Authentication.
Two Officers shall sign the Securities for the
Company by manual or facsimile signature.
If an Officer whose signature is on a Security
no longer holds that office at the time the Security is authenticated, the Security shall nevertheless be valid.
A Security shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent. Such a signature shall be conclusive evidence that the Security has
been authenticated under this Indenture.
The Trustee shall at any time, and from time
to time, authenticate Securities for original issue in the principal amount provided in the Board Resolution, supplemental indenture
hereto or Officers’ Certificate, upon receipt by the Trustee of a Company Order. Such Company Order may authorize authentication
and delivery pursuant to oral or electronic instructions from the Company or its duly authorized agent or agents, which oral instructions
shall be promptly confirmed in writing. Each Security shall be dated the date of its authentication unless otherwise provided by a Board
Resolution, a supplemental indenture hereto or an Officers’ Certificate.
The aggregate principal amount of Securities
of any Series outstanding at any time may not exceed any limit upon the maximum principal amount for such Series set forth
in the Board Resolution, supplemental indenture hereto or Officers’ Certificate delivered pursuant to Section 2.2, except
as provided in Section 2.8.
Prior to the issuance of Securities of any Series,
the Trustee shall have received and (subject to Section 7.2) shall be fully protected in relying on: (a) the Board Resolution,
supplemental indenture hereto or Officers’ Certificate establishing the form of the Securities of that Series or of Securities
within that Series and the terms of the Securities of that Series or of Securities within that Series, (b) an Officers’
Certificate complying with Section 10.4, and (c) an Opinion of Counsel complying with Section 10.4.
The Trustee shall have the right to decline to
authenticate and deliver any Securities of such Series: (a) if the Trustee, being advised by counsel, determines that such action
may not be taken lawfully; or (b) if the Trustee in good faith by its board of directors or trustees, executive committee or a trust
committee of directors and/or Vice Presidents shall determine that such action would expose the Trustee to personal liability to Holders
of any then outstanding Series of Securities.
The Trustee may appoint an authenticating agent
acceptable to the Company to authenticate Securities. An authenticating agent may authenticate Securities whenever the Trustee may do
so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent
has the same rights as an Agent to deal with the Company or an Affiliate of the Company.
Section 2.4 Registrar and Paying
Agent. The Company shall maintain, with respect to each Series of Securities, at the place or places specified with respect
to such Series pursuant to Section 2.2, an office or agency where Securities of such Series may be presented or surrendered
for payment (“Paying Agent”), where Securities of such Series may be surrendered for registration of transfer or exchange
(“Registrar”) and where notices and demands to or upon the Company in respect of the Securities of such Series and this
Indenture may be served (“Service Agent”). The Registrar shall keep a register with respect to each Series of Securities
and to their transfer and exchange. The Company will give prompt written notice to the Trustee of the name and address, and any change
in the name or address, of each Registrar, Paying Agent or Service Agent. If at any time the Company shall fail to maintain any such
required Registrar, Paying Agent or Service Agent or shall fail to furnish the Trustee with the name and address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate
one or more co-registrars, additional paying agents or additional service agents and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligations to maintain a Registrar,
Paying Agent and Service Agent in each place so specified pursuant to Section 2.2 for Securities of any Series for such purposes.
The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the name or address
of any such co-registrar, additional paying agent or additional service agent. The term “Registrar” includes any co-registrar;
the term “Paying Agent” includes any additional paying agent; and the term “Service Agent” includes any additional
service agent.
The Company hereby appoints the Trustee as the
initial Registrar, Paying Agent and Service Agent for each Series unless another Registrar, Paying Agent or Service Agent, as the
case may be, is appointed prior to the time Securities of that Series are first issued.
Section 2.5 Paying Agent to Hold
Money in Trust. The Company shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will
hold in trust, for the benefit of Securityholders of any Series of Securities, or the Trustee, all money held by the Paying Agent
for the payment of principal of or interest on the Series of Securities, and will notify the Trustee of any default by the Company
in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the
Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee,
the Paying Agent (if other than the Company or a Subsidiary of the Company) shall have no further liability for the money. If the Company
or a Subsidiary of the Company acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of Securityholders
of any Series of Securities all money held by it as Paying Agent.
Section 2.6 Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses
of Securityholders of each Series of Securities and shall otherwise comply with TIA Section 312(a). If the Trustee is not the
Registrar, the Company shall furnish to the Trustee at least ten days before each interest payment date and at such other times as the
Trustee may request in writing a list, in such form and as of such date as the Trustee may reasonably require, of the names and addresses
of Securityholders of each Series of Securities.
Section 2.7 Transfer and Exchange.
Where Securities of a Series are presented to the Registrar or a co-registrar with a request to register a transfer or to exchange
them for an equal principal amount of Securities of the same Series, the Registrar shall register the transfer or make the exchange if
its requirements for such transactions are met. To permit registrations of transfers and exchanges, the Trustee shall authenticate Securities
at the Registrar’s request. No service charge shall be made for any registration of transfer or exchange (except as otherwise expressly
permitted herein), but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer tax or similar governmental charge payable upon exchanges pursuant to Sections
2.11, 3.6 or 9.6).
Neither the Company nor the Registrar shall
be required (a) to issue, register the transfer of, or exchange Securities of any Series for the period beginning at the
opening of business 15 days immediately preceding the mailing of a notice of redemption of Securities of that Series selected
for redemption and ending at the close of business on the day of such mailing, or (b) to register the transfer of or exchange
Securities of any Series selected, called or being called for redemption as a whole or the portion being redeemed of any such
Securities selected, called or being called for redemption in part.
Section 2.8 Mutilated, Destroyed,
Lost and Stolen Securities. If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor a new Security of the same Series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and
the Trustee (a) evidence to their satisfaction of the destruction, loss or theft of any Security and (b) such security or indemnity
as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company
or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon its request the Trustee
shall authenticate and make available for delivery, in lieu of any such destroyed, lost or stolen Security, a new Security of the same
Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or
stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security,
pay such Security.
Upon the issuance of any new Security under this
Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any Series issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately with any and all other Securities of that Series duly issued hereunder.
The provisions of this Section are exclusive
and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities.
Section 2.9 Outstanding Securities.
The Securities outstanding at any time are all the Securities authenticated by the Trustee except for those canceled by it, those delivered
to it for cancellation, those reductions in the interest on a Global Security effected by the Trustee in accordance with the provisions
hereof and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.8,
it ceases to be outstanding until the Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide purchaser.
If the Paying Agent (other than the Company,
a Subsidiary of the Company or an Affiliate of the Company) holds on the Maturity of Securities of a Series money sufficient to
pay such Securities payable on that date, then on and after that date such Securities of the Series cease to be outstanding and
interest on them ceases to accrue (to the extent of the Maturity of such Security if less than the entire principal amount is due and
payable on such date of Maturity).
A Security does not cease to be outstanding because
the Company or an Affiliate of the Company holds the Security.
In determining whether the Holders of the requisite
principal amount of outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder,
the principal amount of a 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 6.2.
Section 2.10 Treasury Securities.
In determining whether the Holders of the required principal amount of Securities of a Series have concurred in any request, demand,
authorization, direction, notice, consent or waiver, Securities of a Series owned by the Company shall be disregarded, except that
for the purposes of determining whether the Trustee shall be protected in relying on any such request, demand, authorization, direction,
notice, consent or waiver, only Securities of a Series that the Trustee knows are so owned shall be so disregarded.
Section 2.11 Temporary Securities.
Until definitive Securities are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary Securities upon
a Company Order. Temporary Securities shall be substantially in the form of definitive Securities but may have variations that the Company
considers appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee upon request shall
authenticate definitive Securities of the same Series and Stated Maturity in exchange for temporary Securities. Until so exchanged,
temporary Securities shall have the same rights under this Indenture as the definitive Securities.
Section 2.12 Cancellation. The
Company at any time may deliver Securities to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for registration of transfer, exchange or payment. The Trustee shall cancel all Securities surrendered
for transfer, exchange, payment, replacement or cancellation and deliver such canceled Securities to the Company, unless the Company
otherwise directs; provided that the Trustee shall not be required to destroy Securities. The Company may not issue new Securities to
replace Securities that it has paid or delivered to the Trustee for cancellation.
Section 2.13 Defaulted Interest.
If the Company defaults in a payment of interest on a Series of Securities, it shall pay the defaulted interest, plus, to the extent
permitted by law, any interest payable on the defaulted interest, to the persons who are Securityholders of the Series on a subsequent
special record date. The Company shall fix the record date and payment date. At least 10 days before the record date, the Company shall
mail to the Trustee and to each Securityholder of the Series a notice that states the record date, the payment date and the amount
of interest to be paid. The Company may pay defaulted interest in any other lawful manner.
Section 2.14 Global Securities.
(a) Terms
Of Securities. A Board Resolution, a supplemental indenture hereto or an Officers’ Certificate shall establish whether the
Securities of a Series shall be issued in whole or in part in the form of one or more Global Securities and the Depository for such
Global Security or Securities.
(b) Transfer
And Exchange. Notwithstanding any provisions to the contrary contained in Section 2.7 hereof and in addition thereto, any Global
Security shall be exchangeable pursuant to Section 2.7 hereof for Securities registered in the names of Holders other than the Depository
for such Security or its nominee only if (i) such Depository notifies the Company that it is unwilling or unable to continue as
Depository for such Global Security or if at any time such Depository ceases to be a clearing agency registered under the Exchange Act,
and, in either case, the Company fails to appoint a successor Depository registered as a clearing agency under the Exchange Act within
90 days of such event, (ii) the Company executes and delivers to the Trustee an Officers’ Certificate to the effect that such
Global Security shall be so exchangeable or (iii) an Event of Default with respect to the Securities represented by such Global
Security shall have happened and be continuing. Any Global Security that is exchangeable pursuant to the preceding sentence shall be
exchangeable for Securities registered in such names as the Depository shall direct in writing in an aggregate principal amount equal
to the principal amount of the Global Security with like tenor and terms.
Except as provided in this Section 2.14(b),
a Global Security may not be transferred except as a whole by the Depository with respect to such Global Security to a nominee of such
Depository, by a nominee of such Depository to such Depository or another nominee of such Depository or by the Depository or any such
nominee to a successor Depository or a nominee of such a successor Depository.
(c) Legend.
Any Global Security issued hereunder shall bear a legend in substantially the following form:
“This Security is a Global Security within the meaning
of the Indenture hereinafter referred to and is registered in the name of the Depository or a nominee of the Depository. This Security
is exchangeable for Securities registered in the name of a person other than the Depository or its nominee only in the limited circumstances
described in the Indenture, and may not be transferred except as a whole by the Depository to a nominee of the Depository, by a nominee
of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository
or a nominee of such a successor Depository.”
(d) Acts
Of Holders. The Depository, as a Holder, may appoint agents and otherwise authorize participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a Holder is entitled to give or take under the Indenture.
(e) Payments.
Notwithstanding the other provisions of this Indenture, unless otherwise specified as contemplated by Section 2.2, payment of the
principal of and interest, if any, on any Global Security shall be made to the Holder thereof.
(f) Consents,
Declaration And Directions. Except as provided in Section 2.14(e), the Company, the Trustee and any Agent shall treat a person
as the Holder of such principal amount of outstanding Securities of such Series represented by a Global Security as shall be specified
in a written statement of the Depository with respect to such Global Security, for purposes of obtaining any consents, declarations,
waivers or directions required to be given by the Holders pursuant to this Indenture.
Section 2.15 CUSIP Numbers.
The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use
“CUSIP” numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation
is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other elements of identification printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
ARTICLE III
REDEMPTION
Section 3.1 Notice To Trustee.
The Company may, with respect to any Series of Securities, reserve the right to redeem and pay the Series of Securities or
may covenant to redeem and pay the Series of Securities or any part thereof prior to the Stated Maturity thereof at such time and
on such terms as provided for in such Securities. If a Series of Securities is redeemable and the Company wants or is obligated
to redeem prior to the Stated Maturity thereof all or part of the Series of Securities pursuant to the terms of such Securities,
it shall notify the Trustee of the redemption date and the principal amount of Series of Securities to be redeemed. The Company
shall give the notice at least 45 days before the redemption date (or such shorter notice as may be acceptable to the Trustee).
Section 3.2 Selection of Securities
to be Redeemed. Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental indenture or an Officers’
Certificate, if less than all the Securities of a Series are to be redeemed, the Trustee shall select the Securities of the Series to
be redeemed in any manner that the Trustee deems fair and appropriate. The Trustee shall make the selection from Securities of the Series outstanding
not previously called for redemption. The Trustee may select for redemption portions of the principal of Securities of the Series that
have denominations larger than $1,000. Securities of the Series and portions of them it selects shall be in amounts of $1,000 or
whole multiples of $1,000 or, with respect to Securities of any Series issuable in other denominations pursuant to Section 2.2(j),
the minimum principal denomination for each Series and integral multiples thereof. Provisions of this Indenture that apply to Securities
of a Series called for redemption also apply to portions of Securities of that Series called for redemption.
Section 3.3 Notice of Redemption.
Unless otherwise indicated for a particular Series by Board Resolution, a supplemental indenture hereto or an Officers’ Certificate,
at least 30 days but not more than 60 days before a redemption date, the Company shall mail a notice of redemption by first-class mail
to each Holder whose Securities are to be redeemed and, if any Bearer Securities are outstanding, publish on one occasion a notice in
an Authorized Newspaper.
The notice shall identify the Securities of the
Series to be redeemed and shall state:
(a) the
redemption date;
(b) the
redemption price;
(c) the
name and address of the Paying Agent;
(d) that
Securities of the Series called for redemption must be surrendered to the Paying Agent to collect the redemption price;
(e) that
interest on Securities of the Series called for redemption ceases to accrue on and after the redemption date;
(f) the
CUSIP number, if any; and
(g) any
other information as may be required by the terms of the particular Series or the Securities of a Series being redeemed.
At the Company’s request, the Trustee shall
give the notice of redemption in the Company’s name and at its expense.
Section 3.4 Effect of Notice of
Redemption. Once notice of redemption is mailed or published as provided in Section 3.3, Securities of a Series called
for redemption become due and payable on the redemption date and at the redemption price. A notice of redemption may not be conditional.
Upon surrender to the Paying Agent, such Securities shall be paid at the redemption price plus accrued interest to the redemption date,
provided that installments of interest whose Stated Maturity is on or prior to the redemption date shall be payable to the Holders of
such Securities (or one or more predecessor Securities) registered at the close of business on the relevant record date therefor according
to their terms and the terms of this Indenture.
Section 3.5 Deposit of Redemption
Price. On or before the redemption date, the Company shall deposit with the Paying Agent money sufficient to pay the redemption price
of and accrued interest, if any, on all Securities to be redeemed on that date.
Section 3.6 Securities Redeemed
in Part. Upon surrender of a Security that is redeemed in part, the Trustee shall authenticate for the Holder a new Security of the
same Series and the same maturity equal in principal amount to the unredeemed portion of the Security surrendered.
ARTICLE IV
COVENANTS
Section 4.1 Payment of Principal
and Interest. The Company covenants and agrees for the benefit of the Holders of each Series of Securities that it will duly
and punctually pay the principal of and interest, if any, on the Securities of that Series in accordance with the terms of such
Securities and this Indenture.
Section 4.2 SEC Reports. The
Company shall deliver to the Trustee within 15 days after it files them with the SEC copies of the annual reports and of the information,
documents, and other reports (or copies of such portions of any of the foregoing as the SEC may by rules and regulations prescribe)
which the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. The Company also shall
comply with the other provisions of TIA Section 314(a). Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on an Officers’ Certificate).
Section 4.3 Compliance Certificate.
The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Company, an Officers’ Certificate
stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations
under this Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his/her knowledge the
Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions hereof (or, if a Default or Event of Default shall have occurred,
describing all such Defaults or Events of Default of which he may have knowledge).
The Company will, so long as any of the Securities
are outstanding, deliver to the Trustee, forthwith upon becoming aware of any Default or Event of Default, an Officers’ Certificate
specifying such Default or Event of Default and what action the Company is taking or proposes to take with respect thereto.
Section 4.4 Stay, Extension and
Usury Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or
in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any
time hereafter in force, which may affect the covenants or the performance of this Indenture or the Securities and the Company (to the
extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not, by resort
to any such law, 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 has been enacted.
Section 4.5 Corporate Existence.
Subject to Article V, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect
its corporate existence and the rights (charter and statutory), licenses and franchises of the Company; provided, however, that the Company
shall not be required to preserve any such right, license or franchise if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries taken as a whole and that the loss
thereof is not adverse in any material respect to the Holders.
Section 4.6 Taxes. The Company
shall pay prior to delinquency all taxes, assessments and governmental levies, except as contested in good faith and by appropriate proceedings.
ARTICLE V
SUCCESSORS
Section 5.1 When Company May Merge,
Etc. The Company shall not consolidate with or merge with or into, or convey, transfer or lease all or substantially all of
its properties and assets to, any person (a “successor person”) unless:
(a) the
Company is the surviving corporation or the successor person (if other than the Company) is a corporation organized and validly existing
under the laws of any U.S. domestic jurisdiction and expressly assumes the Company’s obligations on the Securities and under this
Indenture; and
(b) immediately
after giving effect to the transaction, no Default or Event of Default shall have occurred and be continuing.
The Company shall deliver to the Trustee prior
to the consummation of the proposed transaction an Officers’ Certificate to the foregoing effect and an Opinion of Counsel stating
that the proposed transaction and any supplemental indenture comply with this Indenture.
Section 5.2 Successor Corporation
Substituted. Upon any consolidation or merger, or any sale, lease, conveyance or other disposition of all or substantially all of
the assets of the Company in accordance with Section 5.1, the successor corporation formed by such consolidation or into or with
which the Company is merged or to which such sale, lease, conveyance or other disposition is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor person has
been named as the Company herein; provided, however, that the predecessor Company in the case of a sale, conveyance or other disposition
(other than a lease) shall be released from all obligations and covenants under this Indenture and the Securities.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1 Events of Default.
“Event of Default,” wherever used
herein with respect to Securities of any Series, means any one of the following events, unless in the establishing Board Resolution,
supplemental indenture or Officers’ Certificate, it is provided that such Series shall not have the benefit of said Event
of Default:
(a) default
in the payment of any interest on any Security of that Series when it becomes due and payable, and continuance of such default for
a period of 30 days (unless the entire amount of such payment is deposited by the Company with the Trustee or with a Paying Agent prior
to the expiration of such period of 30 days);
(b) default
in the payment of principal of any Security of that Series at its Maturity;
(c) default
in the deposit of any sinking fund payment, when and as due in respect of any Security of that Series;
(d) default
in the performance or breach of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty for which
the consequences of nonperformance or breach are addressed elsewhere in this Section 6.1 and other than a covenant or warranty that
has been included in this Indenture solely for the benefit of Series of Securities other than that Series), which default continues
uncured for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of not less than a majority in principal amount of the outstanding Securities of that Series a
written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default”
hereunder;
(e) the
Company pursuant to or within the meaning of any Bankruptcy Law:
i. commences
a voluntary case,
ii. consents
to the entry of an order for relief against it in an involuntary case,
iii. consents
to the appointment of a Custodian of it or for all or substantially all of its property,
iv. makes
a general assignment for the benefit of its creditors, or
v. generally
is unable to pay its debts as the same become due; or
(f) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
i. is
for relief against the Company in an involuntary case,
ii. appoints
a Custodian of the Company or for all or substantially all of its property, or
iii. orders
the liquidation of the Company, and the order or decree remains unstayed and in effect for 60 days; or
(g) any
other Event of Default provided with respect to Securities of that Series, which is specified in a Board Resolution, a supplemental indenture
hereto or an Officers’ Certificate, in accordance with Section 2.2(n).
The term “Bankruptcy Law” means title
11, U.S. Code or any similar Federal or State law for the relief of debtors. The term “Custodian” means any receiver, trustee,
assignee, liquidator or similar official under any Bankruptcy Law.
Section 6.2 Acceleration of Maturity;
Rescission and Annulment. If an Event of Default with respect to Securities of any Series at the time outstanding occurs and
is continuing (other than an Event of Default referred to in Section 6.1(e) or (f)), then in every such case the Trustee or
the Holders of not less than a majority in principal amount of the outstanding Securities of that Series may declare the principal
amount (or, if any Securities of that Series are Discount Securities, such portion of the principal amount as may be specified in
the terms of such Securities) of and accrued and unpaid interest, if any, on all of the Securities of that Series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such
principal amount (or portion thereof) and accrued and unpaid interest, if any, shall become immediately due and payable. If an Event
of Default specified in Section 6.1(e) or (f) shall occur, the principal amount (or portion thereof) of and accrued and
unpaid interest, if any, on all outstanding Securities shall ipso facto become and be immediately due and payable without any declaration
or other act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration
with respect to any Series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee
as hereinafter in this Article provided, the Holders of a majority in principal amount of the outstanding Securities of that Series,
by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if all Events of Default
with respect to Securities of that Series, other than the non-payment of the principal and interest, if any, of Securities of that Series which
have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 6.13.
No such rescission shall affect any subsequent
Default or impair any right consequent thereon.
Section 6.3 Collection Of Indebtedness
And Suits For Enforcement By Trustee. The Company covenants that if:
(a) default
is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for a period
of 30 days,
(b) default
is made in the payment of principal of any Security at the Maturity thereof, or
(c) default
is made in the deposit of any sinking fund payment when and as due by the terms of a Security,
then, the Company will, upon demand of the Trustee, pay to it, for
the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and interest and,
to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and any overdue interest
at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection
of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company
or any other obligor upon such Securities and collect the moneys adjudged or deemed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to any Securities
of any Series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights
of the Holders of Securities of such Series by such appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
Section 6.4 Trustee May File
Proofs Of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company
or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the
Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal and interest owing and unpaid in respect of the Securities and to
file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim
for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed
in such judicial proceeding, and (b) to collect and receive any moneys or other property payable or deliverable on any such claims
and to distribute the same, and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim
of any Holder in any such proceeding.
Section 6.5 Trustee
May Enforce Claims Without Possession Of Securities. All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.
Section 6.6 Application of Money
Collected. Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date
or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or interest, upon presentation of
the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the
Trustee under Section 7.7; and
Second: To the payment of the amounts then due
and unpaid for principal of and interest on the Securities in respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal and interest,
respectively; and
Third: To the Company.
Section 6.7 Limitation On Suits.
No Holder of any Security of any Series shall
have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless:
(a) such
Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that Series;
(b) the
Holders of at least a majority in principal amount of the outstanding Securities of that Series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(c) such
Holder or Holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance
with such request;
(d) the
Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(e) no
direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the outstanding Securities of that Series;
it being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice
the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to
enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders.
Section 6.8 Unconditional Right of
Holders to Receive Principal and Interest. Notwithstanding any other provision in this Indenture, the Holder of any Security shall
have the right, which is absolute and unconditional, to receive payment of the principal of and interest, if any, on such Security on
the Stated Maturity or Stated Maturities expressed in such Security (or, in the case of redemption, on the redemption date) and to institute
suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
Section 6.9 Restoration of Rights
and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 6.10 Rights and Remedies
Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities
in Section 2.8, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive
of any other right or remedy, and every right and remedy 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, to the extent permitted by law, prevent the concurrent assertion or employment of
any other appropriate right or remedy.
Section 6.11 Delay or Omission Not
Waiver. No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every
right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 6.12 Control by Holders.
The Holders of a majority in principal amount of the outstanding Securities of any Series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Securities of such Series, provided that:
(a) such
direction shall not be in conflict with any rule of law or with this Indenture;
(b) the
Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction; and
(c) subject
to the provisions of Section 6.1, the Trustee shall have the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer of the Trustee, determine that the proceeding so directed would involve the Trustee in personal
liability.
Section 6.13 Waiver Of Past Defaults.
The Holders of not less than a majority in principal amount of the outstanding Securities of any Series may on behalf of the Holders
of all the Securities of such Series waive any past Default hereunder with respect to such Series and its consequences, except
a Default (a) in the payment of the principal of or interest on any Security of such Series (provided, however, that the Holders
of a majority in principal amount of the outstanding Securities of any Series may rescind an acceleration and its consequences, including
any related payment default that resulted from such acceleration) or (b) in respect of a covenant or provision hereof which cannot
be modified or amended without the consent of the Holder of each outstanding Security of such Series affected. Upon any such waiver,
such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of
this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
Section 6.14 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, 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 Company, 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
interest on any Security on or after the Stated Maturity or Stated Maturities expressed in such Security (or, in the case of redemption,
on the redemption date).
ARTICLE VII
TRUSTEE
Section 7.1 Duties of Trustee.
(a) If
an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and
use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct
of his own affairs.
(b) Except
during the continuance of an Event of Default:
i. The
Trustee need perform only those duties that are specifically set forth in this Indenture and no others.
ii. In
the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon Officers’ Certificates or Opinions of Counsel furnished to the Trustee and conforming to the requirements
of this Indenture; however, in the case of any such Officers’ Certificates or Opinions of Counsel which by any provisions hereof
are specifically required to be furnished to the Trustee, the Trustee shall examine such Officers’ Certificates and Opinions of
Counsel to determine whether or not they conform to the requirements of this Indenture.
(c) The
Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct,
except that:
i. This
paragraph does not limit the effect of paragraph (b) of this Section.
ii. The
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts.
iii. The
Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it with respect to Securities of any
Series in good faith in accordance with the direction of the Holders of a majority in principal amount of the outstanding Securities
of such Series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such Series.
(d) Every
provision of this Indenture that in any way relates to the Trustee is subject to paragraph (a), (b) and (c) of this Section.
(e) The
Trustee may refuse to perform any duty or exercise any right or power at the request or direction of any Holder unless it receives indemnity
satisfactory to it against any loss, liability or expense.
(f) The
Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. Money
held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
(g) No
provision of this Indenture shall require the Trustee to risk its own funds or otherwise incur any financial liability in the performance
of any of its duties, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk is not reasonably assured to it.
(h) The
Paying Agent, the Registrar and any authenticating agent shall be entitled to the protections, immunities and standard of care as are
set forth in paragraphs (a), (b) and (c) of this Section with respect to the Trustee.
Section 7.2 Rights of Trustee.
(a) The
Trustee may rely on and shall be protected in acting or refraining from acting upon any document believed by it to be genuine and to have
been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document.
(b) Before
the Trustee acts or refrains from acting, it may require an Officers’ Certificate. The Trustee shall not be liable for any action
it takes or omits to take in good faith in reliance on such Officers’ Certificate.
(c) The
Trustee may act through agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care. No
Depository shall be deemed an agent of the Trustee and the Trustee shall not be responsible for any act or omission by any Depository.
(d) The
Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights
or powers, provided that the Trustee’s conduct does not constitute negligence or willful misconduct.
(e) The
Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder without negligence and in good faith and in reliance thereon.
(f) The
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities unless such Holders shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
(g) The
Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted by it hereunder without negligence and in good faith
and in reliance thereon.
(h) The
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit.
(i) The
Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office
of the Trustee, and such notice references the Securities generally or the Securities of a particular Series and this Indenture.
Section 7.3 Individual Rights of
Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal
with the Company or an Affiliate of the Company with the same rights it would have if it were not Trustee. Any Agent may do the same with
like rights. The Trustee is also subject to Sections 7.10 and 7.11.
Section 7.4 Trustee’s Disclaimer.
The Trustee makes no representation as to the validity or adequacy of this Indenture or the Securities, it shall not be accountable for
the Company’s use of the proceeds from the Securities, and it shall not be responsible for any statement in the Securities other
than its authentication.
Section 7.5 Notice Of Defaults.
If a Default or Event of Default occurs and is continuing with respect to the Securities of any Series and if it is known to a Responsible
Officer of the Trustee, the Trustee shall mail to each Securityholder of the Securities of that Series and, if any Bearer Securities
are outstanding, publish on one occasion in an Authorized Newspaper, notice of a Default or Event of Default within 90 days after it occurs
or, if later, after a Responsible Officer of the Trustee has knowledge of such Default or Event of Default. Except in the case of a Default
or Event of Default in payment of principal of or interest on any Security of any Series, the Trustee may withhold the notice if and so
long as its corporate trust committee or a committee of its Responsible Officers in good faith determines that withholding the notice
is in the interests of Securityholders of that Series.
Section 7.6 Reports by Trustee to
Holders. Within 60 days after May 15 in each year, the Trustee shall transmit by mail to all Securityholders, as their names
and addresses appear on the register kept by the Registrar and, if any Bearer Securities are outstanding, publish in an Authorized Newspaper,
a brief report dated as of such May 15, in accordance with, and to the extent required under, TIA Section 313.
A copy of each report at the time of its mailing
to Securityholders of any Series shall be filed with the SEC and each stock exchange, if any, on which the Securities of that Series are
listed. The Company shall promptly notify the Trustee when Securities of any Series are listed on any stock exchange.
Section 7.7 Compensation and Indemnity.
The Company shall pay to the Trustee from time to time compensation for its services as the Company and the Trustee shall from time to
time agree upon in writing. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred by it. Such expenses shall
include the reasonable compensation and expenses of the Trustee’s agents and counsel.
The Company shall indemnify each of the Trustee
and any predecessor Trustee (including the cost of defending itself) against any loss, liability or expense, including taxes (other than
taxes based upon, measured by or determined by the income of the Trustee) incurred by it except as set forth in the next paragraph in
the performance of its duties under this Indenture as Trustee or Agent. The Trustee shall notify the Company promptly of any claim for
which it may seek indemnity. The Company shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have one
separate counsel and the Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement
made without its consent, which consent shall not be unreasonably withheld. This indemnification shall apply to officers, directors, employees,
shareholders and agents of the Trustee.
The Company need not reimburse any expense or
indemnify against any loss or liability incurred by the Trustee or by any officer, director, employee, shareholder or agent of the Trustee
through negligence or willful misconduct.
To secure the Company’s payment obligations
in this Section, the Trustee shall have a lien prior to the Securities of any Series on all money or property held or collected by
the Trustee, except that held in trust to pay principal of and interest on particular Securities of that Series.
When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 6.1(e) or (f) occurs, the expenses and the compensation for the services
are intended to constitute expenses of administration under any Bankruptcy Law.
The provisions of this Section shall survive
the termination of this Indenture.
Section 7.8 Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s
acceptance of appointment as provided in this Section.
The Trustee may resign with respect to the Securities
of one or more Series by so notifying the Company at least 30 days prior to the date of the proposed resignation. The Holders of
a majority in principal amount of the Securities of any Series may remove the Trustee with respect to that Series by so notifying
the Trustee and the Company. The Company may remove the Trustee with respect to Securities of one or more Series if:
(a) the
Trustee fails to comply with Section 7.10;
(b) the
Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a
Custodian or public officer takes charge of the Trustee or its property; or
(d) the
Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee. Within one year after the successor
Trustee takes office, the Holders of a majority in principal amount of the then outstanding Securities may appoint a successor Trustee
to replace the successor Trustee appointed by the Company.
If a successor Trustee with respect to the Securities
of any one or more Series does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee,
the Company or the Holders of at least a majority in principal amount of the Securities of the applicable Series may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance
of its appointment to the retiring Trustee and to the Company. Immediately after that, the retiring Trustee shall transfer all property
held by it as Trustee to the successor Trustee subject to the lien provided for in Section 7.7, the resignation or removal of the
retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee with respect
to each Series of Securities for which it is acting as Trustee under this Indenture. A successor Trustee shall mail a notice of its
succession to each Securityholder of each such Series and, if any Bearer Securities are outstanding, publish such notice on one occasion
in an Authorized Newspaper. Notwithstanding replacement of the Trustee pursuant to this Section 7.8, the Company’s obligations
under Section 7.7 hereof shall continue for the benefit of the retiring Trustee with respect to expenses and liabilities incurred
by it prior to such replacement.
Section 7.9 Successor Trustee by
Merger, Etc. If the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate
trust business to, another person, the successor person without any further act shall be the successor Trustee.
Section 7.10 Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the requirements of TIA Section 310(a)(1), (2) and (5). The Trustee
shall always have a combined capital and surplus of at least $25,000,000 as set forth in its most recent published annual report of condition.
The Trustee shall comply with TIA Section 310(b).
Section 7.11 Referential Collection
of Claims Against Company. The Trustee is subject to TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b).
A Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE VIII
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 8.1 Satisfaction and Discharge
of Indenture. This Indenture shall upon Company Order cease to be of further effect (except as hereinafter provided in this Section 8.1),
and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture,
when
(a) either:
i. all
Securities theretofore authenticated and delivered (other than Securities that have been destroyed, lost or stolen and that have been
replaced or paid) have been delivered to the Trustee for cancellation; or
ii. all
such Securities not theretofore delivered to the Trustee for cancellation
(1) have become due and payable, or
(2) will become due and payable at their Stated Maturity
within one year, or
(3) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the
Company; or
(4) are deemed paid and discharged pursuant to Section 8.3,
as applicable;
and the Company, in the case of (1), (2) and (3) above, has
irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust an amount sufficient for the purpose of paying
and discharging the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal and
interest to the date of such deposit (in the case of Securities which have become due and payable on or prior to the date of such deposit)
or to the Stated Maturity or redemption date, as the case may be;
(b) the
Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(c) the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge
of this Indenture, the obligations of the Company to the Trustee under Section 7.7, and, if money shall have been deposited with
the Trustee pursuant to clause (a) of this Section, the provisions of Sections 2.4, 2.7, 2.8, 8.1, 8.2 and 8.5 shall survive.
Section 8.2 Application of Trust
Funds; Indemnification.
(a) Subject
to the provisions of Section 8.5, all money deposited with the Trustee pursuant to Section 8.1, all money and U.S. Government
Obligations deposited with the Trustee pursuant to Section 8.3 or 8.4 and all money received by the Trustee in respect of U.S. Government
Obligations deposited with the Trustee pursuant to Section 8.3 or 8.4, shall be held in trust and applied by it, in accordance with
the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (other than the Company
acting as its own Paying Agent) as the Trustee may determine, to the persons entitled thereto, of the principal and interest for whose
payment such money has been deposited with or received by the Trustee or to make mandatory sinking fund payments or analogous payments
as contemplated by Sections 8.3 or 8.4.
(b) The
Company shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against U.S. Government
Obligations deposited pursuant to Sections 8.3 or 8.4 or the interest and principal received in respect of such obligations other than
any payable by or on behalf of Holders.
(c) The
Trustee shall deliver or pay to the Company from time to time upon Company Request any U.S. Government Obligations or money held by it
as provided in Sections 8.3 or 8.4 which, in the opinion of a nationally recognized firm of independent certified public accountants expressed
in a written certification thereof delivered to the Trustee, are then in excess of the amount thereof which then would have been required
to be deposited for the purpose for which such U.S. Government Obligations or money were deposited or received. This provision shall not
authorize the sale by the Trustee of any U.S. Government Obligations held under this Indenture.
Section 8.3 Legal Defeasance of Securities
of any Series. Unless this Section 8.3 is otherwise specified, pursuant to Section 2.2(p), to be inapplicable to Securities
of any Series, the Company shall be deemed to have paid and discharged the entire indebtedness on all the outstanding Securities of any
Series on the 91st day after the date of the deposit referred to in subparagraph (c) hereof, and the provisions of this Indenture,
as it relates to such outstanding Securities of such Series, shall no longer be in effect (and the Trustee, at the expense of the Company,
shall, at Company Request, execute proper instruments acknowledging the same), except as to:
(a) the
rights of Holders of Securities of such Series to receive, from the trust funds described in subparagraph (c) hereof, (i) payment
of the principal of and each installment of principal of and interest on the outstanding Securities of such Series on the Stated
Maturity of such principal or installment of principal or interest and (ii) the benefit of any mandatory sinking fund payments applicable
to the Securities of such Series on the day on which such payments are due and payable in accordance with the terms of this Indenture
and the Securities of such Series;
(b) the
provisions of Sections 2.4, 2.7, 2.8, 8.2, 8.3, and 8.5; and
(c) the
rights, powers, trust and immunities of the Trustee hereunder; provided that, the following conditions shall have been satisfied:
i. the
Company shall have deposited or caused to be irrevocably deposited (except as provided in Section 8.2(c)) with the Trustee as trust
funds in trust for the purpose of making the following payments, specifically pledged as security for and dedicated solely to the benefit
of the Holders of such Securities, cash in Dollars and/or U.S. Government Obligations, which through the payment of interest and principal
in respect thereof in accordance with their terms, will provide (and without reinvestment and assuming no tax liability will be imposed
on such Trustee), not later than one day before the due date of any payment of money, an amount in cash, sufficient, in the opinion of
a regionally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee,
to pay and discharge each installment of principal of and interest, if any, on and any mandatory sinking fund payments in respect of all
the Securities of such Series on the dates such installments of interest or principal and such sinking fund payments are due;
ii. such
deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound;
iii. no
Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such
deposit or during the period ending on the 91st day after such date;
iv. the
Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel to the effect that (A) the Company
has received from, or there has been published by, the Internal Revenue Service a ruling, or (B) since the date of execution of this
Indenture, there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such
Opinion of Counsel shall confirm that, the Holders of the Securities of such Series will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit, defeasance and discharge and will be subject to Federal income tax on the same amounts
and in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge had not occurred;
v. the
Company shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders of the Securities of such Series over any other creditors of the Company or with the intent of defeating,
hindering, delaying or defrauding any other creditors of the Company; and
vi. the
Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this Section have been complied with.
Section 8.4 Covenant Defeasance.
Unless this Section 8.4 is otherwise specified pursuant to Section 2.2(p) to be inapplicable to Securities of any Series,
on and after the 91st day after the date of the deposit referred to in subparagraph (a) hereof, the Company may omit to comply with
respect to the Securities of any Series with any term, provision or condition set forth under Sections 4.2, 4.3, 4.4, 4.6, and 5.1
as well as any additional covenants specified in a supplemental indenture for such Series of Securities or a Board Resolution or
an Officers’ Certificate delivered pursuant to Section 2.2(p) (and the failure to comply with any such covenants shall
not constitute a Default or Event of Default with respect to such Series under Section 6.1) and the occurrence of any event
specified in a supplemental indenture for such Series of Securities or a Board Resolution or an Officers’ Certificate delivered
pursuant to Section 2.2(n) and designated as an Event of Default shall not constitute a Default or Event of Default hereunder,
with respect to the Securities of such Series, provided that the following conditions shall have been satisfied:
(a) With
reference to this Section 8.4, the Company has deposited or caused to be irrevocably deposited (except as provided in Section 8.2(c))
with the Trustee as trust funds in trust for the purpose of making the following payments specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Securities, cash in Dollars and/or U.S. Government Obligations, which through the payment
of interest and principal in respect thereof in accordance with their terms, will provide (and without reinvestment and assuming no tax
liability will be imposed on such Trustee), not later than one day before the due date of any payment of money, an amount in cash, sufficient,
in the opinion of a regionally recognized firm of independent certified public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge each installment of principal of and interest, if any, on and any mandatory sinking fund
payments in respect of the Securities of such Series on the dates such installments of interest or principal and such sinking fund
payments are due;
(b) Such
deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound;
(c) No
Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such
deposit or during the period ending on the 91st day after such date;
(d) The
Company shall have delivered to the Trustee an Opinion of Counsel to the effect that Holders of the Securities of such Series will
not recognize income, gain or loss for federal income tax purposes as a result of such deposit and covenant defeasance and will be subject
to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and covenant
defeasance had not occurred; and
(e) The
Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the covenant defeasance contemplated by this Section have been complied with.
Section 8.5 Repayment to Company.
The Trustee and the Paying Agent shall pay to the Company upon request any money held by them for the payment of principal and interest
that remains unclaimed for six months. After that, Securityholders entitled to the money must look to the Company for payment as general
creditors unless an applicable abandoned property law designates another person.
ARTICLE IX
AMENDMENTS AND WAIVERS
Section 9.1 Without Consent of Holders.
The Company and the Trustee may amend or supplement this Indenture or the Securities of one or more Series without the consent of
any Securityholder:
(a) to
cure any ambiguity, defect or inconsistency;
(b) to
comply with Article V;
(c) to
provide for uncertificated Securities in addition to or in place of certificated Securities;
(d) to
make any change that does not adversely affect the rights of any Securityholder;
(e) to
provide for the issuance of and establish the form and terms and conditions of Securities of any Series as permitted by this Indenture;
(f) 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; or
(g) to
comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture under the TIA.
Section 9.2 With Consent of Holders.
The Company and the Trustee may enter into a supplemental indenture with the written consent of the Holders of at least a majority in
principal amount of the outstanding Securities of each Series affected by such supplemental indenture (including consents obtained
in connection with a tender offer or exchange offer for the Securities of such Series), 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 Securityholders of each such Series. Except as provided in Section 6.13, the Holders of at least a majority
in principal amount of the outstanding Securities of any Series by notice to the Trustee (including consents obtained in connection
with a tender offer or exchange offer for the Securities of such Series) may waive compliance by the Company with any provision of this
Indenture or the Securities with respect to such Series.
It shall not be necessary for the consent of the
Holders of Securities under this Section 9.2 to approve the particular form of any proposed supplemental indenture or waiver, but
it shall be sufficient if such consent approves the substance thereof. After a supplemental indenture or waiver under this section becomes
effective, the Company shall mail to the Holders of Securities affected thereby and, if any Bearer Securities affected thereby are outstanding,
publish on one occasion in an Authorized Newspaper, a notice briefly describing the supplemental indenture or waiver. Any failure by the
Company to mail or publish such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such
supplemental indenture or waiver.
Section 9.3 Limitations. Without
the consent of each Securityholder affected, an amendment or waiver may not:
(a) reduce
the amount of Securities whose Holders must consent to an amendment, supplement or waiver;
(b) reduce
the rate of or extend the time for payment of interest (including default interest) on any Security;
(c) reduce
the principal or change the Stated Maturity of any Security or reduce the amount of, or postpone the date fixed for, the payment of any
sinking fund or analogous obligation;
(d) reduce
the principal amount of Discount Securities payable upon acceleration of the maturity thereof;
(e) waive
a Default or Event of Default in the payment of the principal of or interest, if any, on any Security (except a rescission of acceleration
of the Securities of any Series by the Holders of at least a majority in principal amount of the outstanding Securities of such Series and
a waiver of the payment default that resulted from such acceleration);
(f) make
the principal of or interest, if any, on any Security payable in any currency other than that stated in the Security;
(g) make
any change in Sections 6.8, 6.13, or 9.3 (this sentence); or
(h) waive
a redemption payment with respect to any Security.
Section 9.4 Compliance With Trust
Indenture Act. Every amendment to this Indenture or the Securities of one or more Series shall be set forth in a supplemental
indenture hereto that complies with the TIA as then in effect.
Section 9.5 Revocation and Effect
of Consents. Until an amendment is set forth in a supplemental indenture or a waiver becomes effective, a consent to it by a Holder
of a Security is a continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security that evidences
the same debt as the consenting Holder’s Security, even if notation of the consent is not made on any Security. However, any such
Holder or subsequent Holder may revoke the consent as to his Security or portion of a Security if the Trustee receives the notice of revocation
before the date of the supplemental indenture or the date the waiver becomes effective.
Any amendment or waiver once effective shall bind
every Securityholder of each Series affected by such amendment or waiver unless it is of the type described in any of clauses (a) through
(h) of Section 9.3. In that case, the amendment or waiver shall bind each Holder of a Security who has consented to it and every
subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security.
Section 9.6 Notation on or Exchange
of Securities. The Trustee may place an appropriate notation about an amendment or waiver on any Security of any Series thereafter
authenticated. The Company in exchange for Securities of that Series may issue and the Trustee shall authenticate upon request new
Securities of that Series that reflect the amendment or waiver.
Section 9.7 Trustee Protected.
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 7.1) shall be
fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted
by this Indenture. The Trustee shall sign all supplemental indentures, except that the Trustee need not sign any supplemental indenture
that adversely affects its rights.
ARTICLE X
MISCELLANEOUS
Section 10.1 Trust Indenture Act
Controls. If any provision of this Indenture limits, qualifies, or conflicts with another provision which is required or deemed to
be included in this Indenture by the TIA, such required or deemed provision shall control.
Section 10.2 Notices. Any notice
or communication by the Company or the Trustee to the other, or by a Holder to the Company or the Trustee, is duly given if in writing
and delivered in person or mailed by first-class mail:
if to the Company:
Hanover Bancorp, Inc.
80 East Jericho Turnpike
Mineola, New York 11501
Attention: Chief Executive Officer
Telephone: (516) 548-8500
if to the Trustee:
The Company or the Trustee by notice to the other
may designate additional or different addresses for subsequent notices or communications.
Any notice or communication to a Securityholder
shall be mailed by first-class mail to his address shown on the register kept by the Registrar and, if any Bearer Securities are outstanding,
published in an Authorized Newspaper. Failure to mail a notice or communication to a Securityholder of any Series or any defect in
it shall not affect its sufficiency with respect to other Securityholders of that or any other Series.
If a notice or communication is mailed or published
in the manner provided above, within the time prescribed, it is duly given, whether or not the Securityholder receives it.
If the Company mails a notice or communication
to Securityholders, it shall mail a copy to the Trustee and each Agent at the same time.
Section 10.3 Communication by Holders
with Other Holders. Securityholders of any Series may communicate pursuant to TIA Section 312(b) with other Securityholders
of that Series or any other Series with respect to their rights under this Indenture or the Securities of that Series or
all Series. The Company, the Trustee, the Registrar and anyone else shall have the protection of TIA Section 312(c).
Section 10.4 Certificate and Opinion
as to Conditions Precedent. Upon any request or application by the Company to the Trustee to take any action under this Indenture,
the Company shall furnish to the Trustee:
(a) an
Officers’ Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an
Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with.
Section 10.5 Statements Required
in Certificate or Opinion.
Each certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA Section 314(a)(4))
shall comply with the provisions of TIA Section 314(e) and 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 has made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been complied with; and
(d) a
statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
Section 10.6 Rules by Trustee
and Agents. The Trustee may make reasonable rules for action by, or a meeting of, Securityholders of one or more Series. Any
Agent may make reasonable rules and set reasonable requirements for its functions.
Section 10.7 Legal Holidays.
Unless otherwise provided by Board Resolution, Officers’ Certificate or supplemental indenture hereto for a particular Series, a
“Legal Holiday” is any day that is not a Business Day. If a payment date is a Legal Holiday at a place of payment, payment
may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period.
Section 10.8 No Recourse Against
Others. A director, officer, employee or stockholder, as such, of the Company shall not have any liability for any obligations of
the Company 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 Securityholder by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration
for the issue of the Securities.
Section 10.9 Counterparts.
This Indenture may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and
all of which taken together shall constitute one and the same agreement.
Section 10.10 Governing Laws.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
IN SUCH STATE, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
Section 10.11 No Adverse Interpretation
of Other Agreements. This Indenture may not be used to interpret another indenture, loan or debt agreement of the Company or a Subsidiary
of the Company. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 10.12 Successors. All
agreements of the Company in this Indenture and the Securities shall bind its successor. All agreements of the Trustee in this Indenture
shall bind its successor.
Section 10.13 Severability. In
case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired thereby.
Section 10.14 Table of Contents,
Headings, Etc. The Table of Contents, Cross-Reference Table, and headings of the Articles and Sections of this Indenture have been
inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
ARTICLE XI
SINKING FUNDS
Section 11.1 Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for the retirement of the Securities of a Series, except as
otherwise permitted or required by any form of Security of such Series issued pursuant to this Indenture.
The minimum amount of any sinking fund payment
provided for by the terms of the Securities of any Series is herein referred to as a “mandatory sinking fund payment”
and any other amount provided for by the terms of Securities of such Series is herein referred to as an “optional sinking fund
payment.” If provided for by the terms of Securities of any Series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 11.2. Each sinking fund payment shall be applied to the redemption of Securities of any Series as
provided for by the terms of the Securities of such Series.
Section 11.2 Satisfaction Of Sinking
Fund Payments With Securities. The Company may, in satisfaction of all or any part of any sinking fund payment with respect to the
Securities of any Series to be made pursuant to the terms of such Securities (a) deliver outstanding Securities of such Series to
which such sinking fund payment is applicable (other than any of such Securities previously called for mandatory sinking fund redemption)
and (b) apply as credit Securities of such Series to which such sinking fund payment is applicable and which have been repurchased
by the Company or redeemed either at the election of the Company pursuant to the terms of such Series of Securities (except pursuant
to any mandatory sinking fund) or through the application of permitted optional sinking fund payments or other optional redemptions pursuant
to the terms of such Securities, provided that such Securities have not been previously so credited. Such Securities shall be received
by the Trustee, together with an Officers’ Certificate with respect thereto, not later than 15 days prior to the date on which the
Trustee begins the process of selecting Securities for redemption, and shall be credited for such purpose by the Trustee at the price
specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be
reduced accordingly. If as a result of the delivery or credit of Securities in lieu of cash payments pursuant to this Section 11.2,
the principal amount of Securities of such Series to be redeemed in order to exhaust the aforesaid cash payment shall be less than
$100,000, the Trustee need not call Securities of such Series for redemption, except upon receipt of a Company Order that such action
be taken, and such cash payment shall be held by the Trustee or a Paying Agent and applied to the next succeeding sinking fund payment,
provided, however, that the Trustee or such Paying Agent shall from time to time upon receipt of a Company Order pay over and deliver
to the Company any cash payment so being held by the Trustee or such Paying Agent upon delivery by the Company to the Trustee of Securities
of that Series purchased by the Company having an unpaid principal amount equal to the cash payment required to be released to the
Company.
Section 11.3 Redemption Of Securities
For Sinking Fund. Not less than 45 days (unless otherwise indicated in the Board Resolution, supplemental indenture or Officers’
Certificate in respect of a particular Series of Securities) prior to each sinking fund payment date for any Series of Securities,
the Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that Series pursuant to the terms of that Series, the portion thereof, if any, which is to be satisfied by payment of
cash and the portion thereof, if any, which is to be satisfied by delivering and crediting of Securities of that Series pursuant
to Section 11.2, and the optional amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and the
Company shall thereupon be obligated to pay the amount therein specified. Not less than 30 days (unless otherwise indicated in the Board
Resolution, Officers’ Certificate or supplemental indenture in respect of a particular Series of Securities) before each such
sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified
in Section 3.2 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner
provided in Section 3.3. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in
the manner stated in Sections 3.4, 3.5 and 3.6.
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed as of the day and year first above written.
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Hanover Bancorp, Inc. |
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By: |
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Title: |
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[TRUSTEE] |
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By: |
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Title: |
Exhibit 5.1
OPINION OF WINDELS MARX LANE & MITTENDORF,
LLP
January 24, 2024
Hanover Bancorp, Inc.
80 East Jericho Turnpike
Mineola, New York
Re: Shelf Registration Statement of Hanover
Bancorp, Inc. on Form S-3
Ladies and Gentlemen:
We have acted as counsel to Hanover Bancorp, Inc.,
a New York corporation (the “Company”), in connection with its filing of a shelf registration statement on Form S-3 (the
“Registration Statement”), including the prospectus constituting a part thereof (the “Prospectus”), to which this
opinion is an exhibit, filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933,
as amended (the “Securities Act”). We have been requested by the Company to render this opinion in connection with the filing
of the Registration Statement.
The Prospectus provides that it will be supplemented
in the future by one or more supplements to the Prospectus (each a “Prospectus Supplement”). The Prospectus, as supplemented
by various Prospectus Supplements, will provide for the registration by the Company of up to $50,000,000 aggregate offering price of (i) secured
or unsecured debt securities, in one or more series, which may be either senior debt securities, senior subordinated debt securities,
subordinated debt securities or junior subordinated securities (the “Debt Securities”) to be issued pursuant to an Indenture
between the Company and a trustee or bank to be named (the “Trustee”), which may be supplemented for any series of Debt Securities
(the “Indenture”), (ii) shares of preferred stock, no par value per share, in one or more series or classes (the “Preferred
Stock”), (iii) shares of common stock, no par value per share, (the “Common Stock”), (iv) warrants to purchase
Common Stock, Preferred Stock or Debt Securities (the “Warrants”), (v) depositary shares (evidenced by depositary receipts)
representing fractional interests in shares of Preferred Stock (the “Depositary Shares”), or (vi) units composed of the
foregoing (the “Units”). The Debt Securities, Preferred Stock, Common Stock, Warrants, Depositary Shares and the Units are
collectively referred to herein as the “Securities.” Any Debt Securities may be exchangeable and/or convertible into shares
of Common Stock or Preferred Stock or Depository Shares. The Preferred Stock may also be exchangeable for and/or convertible into shares
of Common Stock or another series of Preferred Stock. The Units may be exchangeable and/or settled into the Securities comprising the
Units.
In rendering our opinion, we have reviewed the
Registration Statement and the exhibits thereto. We have also reviewed such corporate documents and records of the Company, such certificates
of public officials and officers of the Company and such other matters as we have deemed necessary or appropriate for purposes of this
opinion.
Except to the extent we opine as to the binding
effect of certain documents as set forth in paragraphs 1, 4, 5 and 6 below, we have assumed that all documents referenced below are the
valid and binding obligations of and enforceable against the parties thereto. We have also assumed the authenticity of all documents submitted
to us as originals, the genuineness of all signatures, the conformity to authentic original documents of all documents submitted to us
as certified, conformed or photostatic copies and the legal capacities of all natural persons.
Based on the foregoing, and subject to the assumptions,
limitations and qualifications set forth herein, we are of the opinion that:
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1. |
(a) When the Debt Securities have been duly established in accordance with the Indenture (including, without limitation, the adoption by the Board of Directors of the Company of a resolution duly authorizing the issuance and delivery of the Debt Securities), duly authenticated by the Trustee and duly executed and delivered on behalf of the Company against payment therefor in accordance with the terms and provisions of such Indenture and as contemplated by the Registration Statement, the Prospectus and the related Prospectus Supplement(s), and (b) when the Registration Statement and any required post-effective amendment thereto and any and all Prospectus Supplement (s) required by applicable laws have all become effective under the Securities Act, and (c) assuming that the terms of the Debt Securities as executed and delivered are as described in the Registration Statement, the Prospectus and the related Prospectus Supplement(s), and (d) assuming that the Debt Securities as executed and delivered do not violate any law applicable to the Company or result in a default under or breach of any agreement or instrument binding upon the Company, and (e) assuming that the Debt Securities as executed and delivered comply with all requirements and restrictions, if any, applicable to the Company, whether imposed by any court or governmental or regulatory body having jurisdiction over the Company, and (f) assuming that the Debt Securities are then issued and sold as contemplated in the Registration Statement, the Prospectus and the related Prospectus Supplement(s), then the Debt Securities (including any Debt Securities issued in exchange or in settlement of Units that are exchangeable or settled into Debt Securities) will constitute valid and binding obligations of the Company. |
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(a) When a new class or series of Preferred Stock has been duly established in accordance with the terms of the restated certificate of incorporation of the Company (“Charter”), the by-laws of the Company (“Bylaws”) and applicable law (in the event that the Preferred Stock is a new class or series of Preferred Stock), and upon adoption by the Board of Directors of the Company of a resolution in form and content as required by applicable law, and (b) assuming that appropriate certificates of amendment to the Company’s Charter relating to such class or series of Preferred Stock have been duly approved by the Company’s Board of Directors and been filed with and accepted for record by the State of New Jersey, and (c) assuming that the Registration Statement and any required post-effective amendment(s) thereto and any and all Prospectus Supplement (s) required by applicable laws have become effective under the Securities Act, and (d) assuming that upon the issuance of such Preferred Stock, the total number of issued and outstanding shares of the applicable class or series of Preferred Stock will not exceed the total number of shares of Preferred Stock or the number of shares of such class or series of Preferred Stock that the Company is then authorized to issue under its Charter, then upon issuance and delivery of and payment for such shares in the manner contemplated by the Registration Statement, the Prospectus and the related Prospectus Supplement(s) and by such resolution, such shares of such class or series of Preferred Stock (including any Preferred Stock duly issued upon (i) the exchange or conversion of any shares of Preferred Stock that are exchangeable or convertible into another class or series of Preferred Stock, (ii) the exercise of any duly issued Warrants exercisable for Preferred Stock, (iii) the exchange or conversion of Debt Securities that are exchangeable or convertible into Preferred Stock or (iv) the exchange or settlement of Units that are exchangeable or able to be settled for Preferred Stock), will be validly issued, fully paid and non-assessable. |
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(a) Upon adoption by the Board of Directors of the Company of a resolution in form and content as required by applicable law authorizing the issuance and sale of Common Stock, and (b) assuming that the Registration Statement and any required post-effective amendment(s) thereto and any and all Prospectus Supplement(s) required by applicable laws have become effective under the Securities Act, and (c) assuming that upon the issuance of such Common Stock, the total number of issued and outstanding shares of Common Stock will not exceed the total number of shares of Common Stock that the Company is then authorized to issue under its Charter, then upon issuance and delivery of and payment for such shares in the manner contemplated by the Registration Statement, the Prospectus and the related Prospectus Supplement(s) and by such resolution, such shares of Common Stock being issued by the Company (including any Common Stock duly issued upon (i) the exchange or conversion of any shares of Preferred Stock that are exchangeable or convertible into Common Stock, (ii) the exercise of any duly issued Warrants exercisable for Common Stock, (iii) the exchange or conversion of Debt Securities that are exchangeable or convertible into Common Stock, or (iv) the exchange or settlement of Units that are exchangeable or able to be settled for Common Stock), will be validly issued, fully paid and non-assessable. |
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(a) When a warrant agreement relating to the Warrants has been duly authorized (the “Warrant Agreement”), executed and delivered and the Warrants and the securities of the Company for which the Warrants will be exercisable have been duly authorized by the Company’s Board of Directors, and (b) assuming that the terms of the Warrants and of their issuance and sale have been duly established in conformity with the Company’s Charter and Bylaws and the Warrant Agreement, and (c) assuming that the Registration Statement and any required post-effective amendment thereto and any and all Prospectus Supplement(s) required by applicable laws have all become effective under the Securities Act, and (d) assuming that the terms of the Warrants as executed and delivered are as described in the Registration Statement, the Prospectus and the related Prospectus Supplement(s), and (e) assuming that the Warrants, as executed and delivered, do not violate any law applicable to the Company or result in a default under or breach of any agreement or instrument binding upon the Company, and (f) assuming that the Warrants as executed and delivered comply with all requirements and restrictions, if any, applicable to the Company, whether imposed by any court or governmental or regulatory body having jurisdiction over the Company, and (g) assuming that the Warrants are then issued and sold as contemplated in the Registration Statement, the Prospectus and the Prospectus Supplement(s), then upon issuance of and delivery of and payment for such Warrants in the manner contemplated by the Registration Statement, the Prospectus and the related Prospectus Supplement and the Warrant Agreement and by such resolution, the Warrants (including any Warrants issued upon the exchange or settlement of Units that are exchangeable or able to be settled for Warrants) will constitute valid and binding obligations of the Company. |
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(a) When a depositary agreement relating to the Depositary Shares has been duly authorized (the “Depositary Agreement”), executed and delivered and the Depositary Shares have been duly authorized by the Company’s Board of Directors, and (b) assuming that the terms of the Depositary Shares and of their issuance and sale have been duly established in conformity with the Company’s Charter and Bylaws and the Depositary Agreement, and (c) assuming that the Registration Statement and any required post-effective amendment thereto and any and all Prospectus Supplement(s) required by applicable laws have all become effective under the Securities Act, and (d) assuming that the terms of the Depositary Shares as executed and delivered are as described in the Registration Statement, the Prospectus and the related Prospectus Supplement(s), and (e) assuming that the Depositary Shares, as executed and delivered, do not violate any law applicable to the Company or result in a default under or breach of any agreement or instrument binding upon the Company, and (f) assuming that the Depositary Shares as executed and delivered comply with all requirements and restrictions, if any, applicable to the Company, whether imposed by any court or governmental or regulatory body having jurisdiction over the Company, and (g) assuming the depositary receipts evidencing the Depositary Shares have been duly issued against the deposit of the Preferred Stock in accordance with the Depositary Agreement and issued and sold as contemplated in the Registration Statement, the Prospectus and the Prospectus Supplement(s), then upon issuance of and delivery of and payment for such Depositary Shares in the manner contemplated by the Registration Statement, the Prospectus and the related Prospectus Supplement and by such resolution, the depositary receipts evidencing Depositary Shares (including any depositary receipts evidencing Depositary Shares issued upon the exchange or settlement of Units exchangeable or able to be settled for Depositary Shares) will entitle holders thereof to the rights specified in the Depositary Agreement. |
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6. |
(a) When a unit agreement relating to the Units has been duly authorized (the “Unit Agreement”), executed and delivered and the Units have been duly authorized by the Company’s Board of Directors, and (b) assuming that the terms of the Units and of their issuance and sale have been duly established in conformity with the Unit Agreement, and (c) assuming that the Registration Statement and any required post-effective amendment thereto and any and all Prospectus Supplement(s) required by applicable laws have all become effective under the Securities Act, and (d) assuming that the terms of the Units as executed and delivered are as described in the Registration Statement, the Prospectus and the related Prospectus Supplement(s), and (e) assuming that the Units, as executed and delivered, do not violate any law applicable to the Company or result in a default under or breach of any agreement or instrument binding upon the Company, and (f) assuming that the Units as executed and delivered comply with all requirements and restrictions, if any, applicable to the Company, whether imposed by any court or governmental or regulatory body having jurisdiction over the Company, and (g) assuming that the Units are then issued and sold as contemplated in the Registration Statement, the Prospectus and the Prospectus Supplement(s), then upon issuance of and delivery of and payment for such Units in the manner contemplated by the Registration Statement, the Prospectus and the related Prospectus Supplement and the Unit Agreement and by such resolution, the Units will constitute valid and binding obligations of the Company. |
The opinions set forth in paragraphs 1, 4, 5 and
6 above are subject to the following exceptions, limitations and qualifications: (i) the effect of bankruptcy, insolvency, reorganization,
arrangement, moratorium, fraudulent conveyance, fraudulent transfer and other similar laws relating to or affecting the rights of creditors;
(ii) the effect of general principles of equity (including, without limitation, concepts of materiality, reasonableness, good faith
and fair dealing and the possible unavailability of specific performance, injunctive relief and other equitable remedies), regardless
of whether considered in a proceeding at law or in equity, (iii) the effect of public policy considerations that may limit the rights
of the parties to obtain further remedies, (iv) we express no opinion with respect to the enforceability of provisions relating to
choice of law, choice of venue, jurisdiction or waivers of jury trial, and (v) we express no opinion with respect to the enforceability
of any waiver of any usury defense.
To the extent that the obligations of the Company
with respect to the Securities may be dependent on such matters, we assume for purposes of this opinion that the other party under the
Indenture for any Debt Securities, under the Warrant Agreement for any Warrants, under the Unit Agreement for any Units and under the
Deposit Agreement for any Depository Shares, namely, the Trustee, the warrant agent, the unit agent or the depositary, respectively, is
duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; that such other party is duly
qualified to engage in the activities contemplated by such Indenture, Warrant Agreement, Unit Agreement or Deposit Agreement, as applicable;
that such Indenture, Warrant Agreement, Unit Agreement or Deposit Agreement has been duly authorized, executed and delivered by such other
party and constitutes the legally valid, binding and enforceable obligation of such other party, enforceable against such other party
in accordance with its terms; that such other party is in compliance, generally and with respect to performance of its obligations under
such Indenture, Warrant Agreement, Unit Agreement, or Deposit Agreement, as applicable, with all applicable laws and regulations; and
that such other party has the requisite organizational and legal power and authority to perform its obligations under such Indenture,
Warrant Agreement, Unit Agreement or Deposit Agreement, as applicable.
Our opinion is limited to the federal laws of
the United States, the laws of the State of New Jersey and the laws of the State of New York. We express no opinion as to the effect of
the law of any other jurisdiction. Our opinion is rendered as of the date hereof, and we assume no obligation to advise you of changes
in law or fact (or the effect thereof on the opinions expressed herein) that hereafter may come to our attention.
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 thereby admit that we are in the category of persons whose consent
is required under Section 7 of the Securities Act or the Rules and Regulations of the Commission promulgated thereunder.
Very truly yours,
| Windels Marx Lane & Mittendorf LLP |
|
| |
|
| /s/ Windels Marx Lane & MittendorfLLP |
|
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on
Form S-3 of Hanover Bancorp, Inc. of our report dated December 21, 2023, relating to the consolidated financial statements appearing in
the Annual Report on Form 10-K of Hanover Bancorp, Inc. for the year ended September 30, 2023, and to the reference to us under the heading
“Experts” in the prospectus.
Livingston, New Jersey
January 24, 2024
Exhibit 24.1
POWER OF ATTORNEY
Each person whose signature
appears below hereby makes, constitutes and appoints Michael P. Puorro, and Lance P. Burke, each of them with full
power to act without the other, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all capacities to sign any and all amendments to this Registration
Statement, including post-effective amendments and registration statements filed pursuant to Rule 462 under the Securities Act
of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every
act and thing requisite or necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or any substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act
of 1933, this Registration Statement has been signed on January 24, 2024, by the following persons in the capacities indicated.
| /s/ Varkey Abraham |
|
| Varkey Abraham |
|
| Director |
|
| |
|
| /s/ Robert Golden |
|
| Robert Golden |
|
| Director |
|
| |
|
| /s/ Ahron Haspel |
|
| Ahron Haspel |
|
| Director |
|
| |
|
| /s/ Michael Katz |
|
| Michael Katz |
|
| Director |
|
| |
|
| /s/ Metin Negrin |
|
| Metin Negrin |
|
| Director |
|
| |
|
| /s/ Philip Okun |
|
| Philip Okun |
|
| Director |
|
| |
|
| /s/ Elena Sisti |
|
| Elena Sisti |
|
| Director |
|
| |
|
| /s/ John Sorrenti |
|
| John Sorrenti |
|
| Director |
|
EX-FILING FEES
Calculation
of Filing Fee Tables
S-3
(Form Type)
HANOVER
BANCORP, INC.
(Exact Name of Registrant as Specified in its Charter)
Table
1: Newly Registered and Carry Forward Securities
| |
Security Type |
Security
Class
Title |
Fee
Calculation
or Carry
Forward
Rule |
Amount
Registered |
Proposed
Maximum
Offering Price
Per Unit (1) |
Maximum
Aggregate
Offering Price
(1)(2) |
Fee Rate |
Amount of
Registration
Fee |
Carry
Forward
Form Type |
Carry
Forward
File Number |
Carry
Forward
Initial
effective date |
Filing Fee
Previously Paid
In Connection
with Unsold
Securities
to be Carried
Forward |
| |
Newly Registered Securities |
| Fees to Be Paid |
Equity |
Common Stock, par value $0.01 per share |
457(o) |
— |
— |
— |
— |
— |
|
|
|
|
| |
Equity |
Preferred Stock, par value $0.01 per share |
457(o) |
— |
— |
— |
— |
— |
|
|
|
|
| |
Equity |
Depositary Shares |
457(o) |
— |
— |
— |
— |
— |
|
|
|
|
| |
Other |
Warrants |
457(o) |
— |
— |
— |
— |
— |
|
|
|
|
| |
Other |
Units |
457(o) |
— |
— |
— |
— |
— |
|
|
|
|
| |
Dent |
Debt Securities (3) |
457(o) |
— |
— |
— |
— |
— |
|
|
|
|
| |
Other |
Unallocated (Universal) Shelf |
457(o) |
— |
— |
$50,000,000 |
0.00014760 |
$7,380 |
|
|
|
|
| Fees Previously Paid |
— |
— |
— |
— |
— |
— |
— |
— |
|
|
|
|
| |
Carry Forward Securities |
| Carry Forward Securities |
|
|
|
|
|
|
|
|
|
|
|
|
| |
Total Offering Amounts |
|
$50,000,000 |
|
$7,380 |
|
|
|
|
| |
Total Fees Previously Paid |
|
|
|
— |
|
|
|
|
| |
Total Fee Offsets |
|
|
|
— |
|
|
|
|
| |
Net Fee Due |
|
|
|
$7,380 |
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
(1) The amount being registered
consists of up to $50,000,000 of an indeterminate amount of common stock, preferred stock, depositary shares, debt securities, warrants
and units. The registrant will determine the proposed maximum offering price per unit from time to time in connection with the issuance
of securities registered hereunder. There is also being registered hereunder an indeterminate number and/or amount of securities registered
hereunder as may be issued upon conversion, exchange, exercise, redemption or settlement, as the case may be, of any other securities
registered hereunder that provide for such conversion, exchange, exercise, redemption or settlement. Further, the shares being registered
hereunder include, per Rule 416 of the Securities Act, an indeterminate number of shares of common stock and preferred stock as may be
issuable with respect to the shares being registered hereunder as a result of stock splits, stock dividends and similar transactions.
Any securities registered hereunder may be offered separately or in combination with the other securities registered hereunder.
(2) Estimated solely for purposes
of determining the registration fee in accordance with Rule 457(o) of the rules and regulations of the Securities Act and based upon
the maximum aggregate offering price of all securities being registered.
(3) Debt securities issued
under this registration statement may be senior and/or subordinated debt securities of Hanover Bancorp, Inc.
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