Exhibit 1.1
Execution Version
SYNOVUS
FINANCIAL CORP.
$250,000,000
5.75% Fixed-to-Floating Rate Subordinated Notes due December 15, 2025
Underwriting Agreement
December 2, 2015
Sandler O’Neill +
Partners, L.P.
1251 Avenue of the Americas, 6
th
Floor
New York, New York 10020
Ladies and Gentlemen:
Synovus Financial Corp., a Georgia corporation (the “Company”) confirms its agreement with Sandler O’Neill + Partners, L.P.
(the “Representative”) on behalf of the several Underwriters listed in Schedule I hereto (together, the “Underwriters”), with respect to the issue and sale by the Company, and the purchase by the Underwriters, acting severally
and not jointly, of the respective principal amounts set forth in Schedule I of $250,000,000 in aggregate principal amount of the Company’s 5.75% Fixed-to-Floating Rate Subordinated Notes due December 15, 2025 (the “Securities”).
The Securities are to be issued pursuant to an indenture to be dated as of December 7, 2015 between the Company and the Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”), as supplemented by a first supplemental
indenture, to be dated of December 7, 2015, between the Company and the Trustee (the indenture as so supplemented, the “Indenture”).
1.
Registration Statement
. The Company has prepared and filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder
(collectively, the “Securities Act”), an automatically effective shelf registration statement on Form S-3ASR (File No. 333-190011), including a prospectus, relating to the Securities. Such registration statement, as amended at the
time it became effective, including the information, if any, deemed pursuant to Rule 430A, 430B or 430C under the Securities Act to be part of the registration statement at the time of its effectiveness (“Rule 430 Information”), is
referred to herein as the “Registration Statement”; and as used herein, the term “Preliminary Prospectus” means each prospectus included in such registration statement (and any amendments thereto) before effectiveness, any
prospectus filed with the Commission pursuant to Rule 424(a) under the Securities Act and the prospectus included in the Registration Statement at the time of its effectiveness that omits Rule 430 Information, and the term “Prospectus”
means the prospectus in the form first used (or made available upon request of purchasers pursuant to Rule 173 under the Securities Act) in connection with confirmation of sales of the Securities. Any reference in this Agreement to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act, as of the effective date of the
Registration Statement or the date of such
Preliminary Prospectus or the Prospectus, as the case may be, and any reference to “amend,” “amendment” or “supplement” with respect to the Registration Statement,
any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after such date under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively,
the “Exchange Act”) that are deemed to be incorporated by reference therein. Capitalized terms used but not defined herein shall have the meanings given to such terms in the Registration Statement and the Prospectus.
At or prior to the Applicable Time (as defined below), the Company had prepared the following information (collectively with the information
set forth on Annex A, including a Pricing Term Sheet in the form attached hereto as Schedule II, the “Pricing Disclosure Package”): a Preliminary Prospectus dated November 30, 2015 and each “free writing prospectus” (as
defined pursuant to Rule 405 under the Securities Act) listed on Annex A hereto. “Applicable Time” means 1:30 p.m., Eastern time, on the date of this Agreement or such other time as agreed upon by the Company and the Representative.
2.
Purchase of the Securities by the Underwriters
.
The Company agrees to issue and sell the Securities to the several Underwriters as provided in this Agreement, and each Underwriter, on the
basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the Company the respective principal amount of Securities set forth opposite
such Underwriter’s name in Schedule 1 hereto at a purchase price of 99.0% of the principal amount thereof, plus any accrued and unpaid interest thereon (the “Purchase Price”), plus any additional number of Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof.
The Company understands that the
Underwriters propose to make a public offering of the Securities as soon as the Representative deems advisable after this Agreement has been executed and delivered, and initially to offer the Securities on the terms set forth in the Prospectus. The
Company acknowledges and agrees that the Underwriters may offer and sell Securities to or through any affiliate of an Underwriter.
Payment for the Securities shall be made by wire transfer in immediately available funds to the account specified by the Company to the
Representative in the case of the Securities, at the offices of Troutman Sanders LLP, 600 Peachtree Street, Suite 5200, Atlanta, Georgia 30308 at 10:00 a.m., Eastern time, on December 7, 2015, or at such other time or place on the same or such
other date, not later than the fifth business day thereafter, as the Representative and the Company may agree upon in writing. The time and date of such payment for the Securities is referred to herein as the “Closing Date.”
Payment for the Securities to be purchased on the Closing Date shall be made against delivery to the Representative for the respective
accounts of the several Underwriters of the Securities to be purchased on such date in such names and in such denominations as the Representative shall request in writing not later than two full business days prior to the Closing Date with any
transfer taxes payable in connection with the sale of such Securities duly paid by the Company. Delivery of the Securities shall be made through the facilities of The Depository
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Trust Company (“DTC”) unless the Representative shall otherwise instruct. The certificates for the Securities will be made available for inspection and packaging by the Representative
at the office of DTC or its designated custodian not later than 1:00 p.m., Eastern time, on the business day prior to the Closing Date. Securities issued in book-entry form shall be issued to Cede & Co. as nominee of DTC pursuant to the
blanket issuer letter of representations (the “DTC Agreement”), between the Company and DTC.
The Company acknowledges and
agrees that (i) the purchase and sale of the Securities pursuant to this Agreement, including the determination of the public offering price of the Securities and any related discounts and commissions, is an arm’s-length commercial
transaction between the Company, on the one hand, and the several Underwriters, on the other hand, (ii) in connection with the offering contemplated hereby and the process leading to such transaction, each Underwriter is and has been acting
solely as a principal and is not the agent or fiduciary of the Company, or any of the Company’s shareholders, creditors, employees or any other third party, (iii) no Underwriter has assumed or will assume an advisory or fiduciary
responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) and no Underwriter
has any obligation to the Company with respect to the offering contemplated hereby except the obligations expressly set forth in this Agreement, (iv) the Underwriters and their respective Affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the Company, and (v) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby and the Company has consulted
its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate. The Company shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters
shall have no responsibility or liability to the Company with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the
benefit of the Underwriters and shall not be on behalf of the Company.
3.
Representations and Warranties of the Company
. The Company represents
and warrants to each Underwriter that:
(a)
Preliminary Prospectus
. No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary Prospectus included in the Pricing Disclosure Package, at the time of filing thereof, complied in all material respects with the Securities Act, and no Preliminary Prospectus, at the
time of filing thereof, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
provided
that the Company makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Representative expressly for use in any Preliminary Prospectus, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 7(b)
hereof.
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(b)
Pricing Disclosure Package
. The Pricing Disclosure Package as of the Applicable Time
did not, and as of the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not
misleading;
provided
that the Company makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representative expressly for use in such Pricing Disclosure Package, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in
Section 7(b) hereof.
(c)
Issuer Free Writing Prospectus
. Other than the Registration Statement, the Preliminary Prospectus
and the Prospectus, the Company (including its agents and representatives, other than the Underwriters in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to
any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Company or its agents and representatives
(other than a communication referred to in clause (i) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134
under the Securities Act or (ii) the documents listed on Annex A hereto, each electronic road show and any other written communications approved in writing in advance by the Representative. Each such Issuer Free Writing Prospectus complied in
all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Preliminary Prospectus
accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not, and as of the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
provided
that the Company makes no representation or warranty with respect to any statements or omissions made in each such Issuer Free Writing
Prospectus or Preliminary Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representative expressly for use in such Issuer Free Writing
Prospectus or Preliminary Prospectus, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 7(b) hereof.
(d)
Registration Statement and Prospectus
. The Registration Statement is an “automatic shelf registration statement” as
defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or
pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Securities has been initiated or threatened by the Commission; as of the applicable effective date of the Registration Statement and any
post-effective amendment thereto, the Registration Statement
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and any such post-effective amendment complied and will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of
the Commission thereunder (collectively, the “Trust Indenture Act”) and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the
statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date the Prospectus will not contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
provided
that the Company makes no representation and warranty with respect to any statements or omissions made
in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representative expressly for use in the Registration Statement and the Prospectus and any amendment
or supplement thereto, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 7(b) hereof.
(e)
Incorporated Documents
. The documents incorporated by reference in the Registration Statement, the Prospectus and the Pricing
Disclosure Package, when they were filed with the Commission conformed in all material respects to the requirements of the Exchange Act, and none of such documents contained any untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Registration Statement, the Prospectus or the Pricing
Disclosure Package, when such documents are filed with the Commission, will conform in all material respects to the requirements of the Exchange Act and will not contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(f)
Financial
Statements
. The financial statements (including the related notes thereto) of the Company and its consolidated subsidiaries included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus
comply in all material respects with the applicable requirements of the Securities Act and the Exchange Act, as applicable, and present fairly the financial position of the Company and its consolidated subsidiaries as of the dates indicated and the
results of their operations and the changes in their cash flows for the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles in the United States (“GAAP”) applied on a
consistent basis throughout the periods covered thereby, and any supporting schedules included or incorporated by reference in the Registration Statement present fairly the information required to be stated therein; and the other financial
information included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus has been derived from the accounting records of the Company and its consolidated subsidiaries and presents fairly the
information shown thereby. To the extent applicable, all disclosures contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus regarding “non-GAAP financial measures” (as such term is defined by the rules
and regulations of the Commission) comply with Regulation G of the Exchange Act, the rules and regulations thereunder and Item 10 of Regulation S-K under the Securities Act, as applicable. The interactive data in eXtensible Business Reporting
Language incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s
rules and guidelines applicable thereto.
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(g)
No Material Adverse Change
. Since the date of the most recent financial statements of
the Company included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, (i) there has not been any change in the capital stock (other than the issuance of shares of Common Stock upon
exercise of stock options and warrants described as outstanding in, and the grant of options and awards under existing equity incentive plans described in, the Registration Statement, the Pricing Disclosure Package and the Prospectus), short-term
debt or long-term debt of the Company or any of its subsidiaries, or any dividend or distribution of any kind declared, set aside for payment, paid or made by the Company on any class of capital stock (other than routine quarterly dividends on its
Common Stock and Fixed-to-Floating Rate Non-Cumulative Perpetual Preferred Stock, Series C, in a manner and amount consistent with past practice), or any material adverse change, or any development involving a prospective material adverse change, in
or affecting the business, properties, management, financial position, stockholders’ equity, results of operations or prospects of the Company and its subsidiaries taken as a whole; (ii) neither the Company nor any of its subsidiaries has
entered into any transaction or agreement (whether or not in the ordinary course of business) that is material to the Company and its subsidiaries taken as a whole or incurred any liability or obligation, direct or contingent, that is material to
the Company and its subsidiaries taken as a whole; and (iii) neither the Company nor any of its subsidiaries has sustained any loss or interference with its business that is material to the Company and its subsidiaries taken as a whole and that
is either from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or regulatory authority, except in each
case as otherwise disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(h)
Organization and
Good Standing
. The Company and each of its subsidiaries are incorporated and are validly existing and in good standing under the laws of their respective jurisdictions of organization and, in the case of Synovus Trust Company, N.A. is validly
chartered as a national bank. The Company and each of its subsidiaries are duly qualified to do business and are in good standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective
businesses requires such qualification, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged, except where the failure to be so qualified or in good standing or
have such power or authority would not, individually or in the aggregate, have a material adverse effect on the business, properties, management, financial position, stockholders’ equity, results of operations or prospects of the Company and
its subsidiaries taken as a whole or on the performance by the Company of its obligations under this Agreement (a “Material Adverse Effect”). The Company is duly registered as a bank holding company under the Bank Holding Company Act of
1956, as amended (the “BHCA”) and is a financial holding company pursuant to Section 4(l) of the BHCA and meets the applicable requirements for qualification as such. The Company does not own or control, directly or indirectly, any
corporation, association or other entity other than the subsidiaries listed on Annex B. The Company does not have any significant subsidiaries (as such term is defined in Rule 1-02 of Regulation S-X) (a “Significant Subsidiary”) other than
Synovus Bank.
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(i)
Capitalization
. The Company has an authorized capitalization as set forth in the
Registration Statement, the Pricing Disclosure Package and the Prospectus under the heading “Capitalization”; all the outstanding shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid
and non-assessable and are not subject to any preemptive or similar rights; and all the outstanding shares of capital stock or other equity interests of each subsidiary owned, directly or indirectly, by the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and are owned directly or indirectly by the Company, free and clear of any lien, charge, encumbrance, security interest, restriction on voting or transfer or any other claim of any third
party.
(j)
Due Authorization
. The Company has full right, power and authority to execute and deliver this Agreement and to perform
its obligations hereunder; and all action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby has been duly and validly taken.
(k)
Underwriting Agreement
. This Agreement has been duly authorized, executed and delivered by the Company.
(l)
The Securities
. The Securities have been duly authorized by the Company and, when duly executed, authenticated, issued and
delivered as provided in the Indenture against payment therefor in accordance with the terms of this Agreement, will be duly and validly issued and outstanding and will constitute valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar laws relating to or affecting enforcement of creditors’ rights generally or by general equitable
principles (whether considered in a proceeding at law or in equity) (collectively, the “Enforceability Exceptions”). The Securities will be in the form contemplated by, and will be entitled to the benefits of the Indenture; the Securities
will conform in all material respects to the descriptions thereof in the Registration Statement, the Pricing Disclosure Package, and the Prospectus; and the issuance of the Securities is not subject to preemptive or similar rights.
(m)
The Indenture
. The Indenture has been duly authorized by the Company and, when duly executed and delivered by the Company in
accordance with the terms of this Agreement will be duly executed and delivered by the Company and will constitute a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as limited by the
Enforceability Exceptions. The Indenture will conform in all material respects to the descriptions thereof in the Registration Statement, the Pricing Disclosure Package, and the Prospectus and will be in substantially the form filed or incorporated
by reference, as the case may be, as exhibits to the Registration Statement. The Indenture has been duly qualified under the Trust Indenture Act and complies in all material respects with the applicable requirements of the Trust Indenture Act.
(n)
No Violation or Default
. Neither the Company nor any of its Significant Subsidiaries is (i) in violation of its charter or
by-laws or similar organizational documents;
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(ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or
condition contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of
the property or assets of the Company or any of its subsidiaries is subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in
the case of clauses (ii) and (iii) above, for any such default or violation that would not, individually or in the aggregate, have a Material Adverse Effect.
(o)
No Conflicts
. The execution, delivery and performance by the Company of this Agreement, the Indenture and the issuance and sale of
the Securities and the consummation of the transactions contemplated by this Agreement will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any
of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, (ii) result in any violation of the provisions of the
charter or by-laws or similar organizational documents of the Company or any of its subsidiaries or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or
regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not, individually or in the aggregate, have a Material Adverse Effect.
(p)
No Consents Required
. No consent, approval, authorization, order, license, registration or qualification of or with any court or
arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Company of this Agreement, the Indenture, the issuance and sale of the Securities and the consummation of the transactions contemplated
by this Agreement, except for the registration of the Securities under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as may be required by the Financial Industry Regulatory Authority,
Inc. (“FINRA”) and under applicable state securities laws in connection with the purchase and distribution of the Securities by the Underwriters.
(q)
Legal Proceedings
. Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there are
no legal, governmental or regulatory investigations, actions, suits or proceedings pending to which the Company or any of its subsidiaries is or may be a party or to which any property of the Company or any of its subsidiaries is or may be the
subject that, individually or in the aggregate, if determined adversely to the Company or any of its subsidiaries, could reasonably be expected to have a Material Adverse Effect; to the knowledge of the Company, no such investigations, actions,
suits or proceedings are threatened or contemplated by any governmental or regulatory authority or threatened by others; and (i) there are no current or pending legal, governmental or regulatory actions, suits or proceedings that are required
under the Securities Act to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus that are not so described in the Registration Statement, the Pricing Disclosure Package and the Prospectus and
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(ii) there are no statutes, regulations or contracts or other documents that are required under the Securities Act to be filed as exhibits to the Registration Statement or described in the
Registration Statement, the Pricing Disclosure Package or the Prospectus that are not so filed as exhibits to the Registration Statement or described in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(r)
Independent Accountants
. KPMG LLP, who have certified certain financial statements of the Company and its subsidiaries
included in the Registration Statement, the Pricing Disclosure Package and the Prospectus, is an independent registered public accounting firm with respect to the Company and its subsidiaries within the applicable rules and regulations adopted by
the Commission and the Public Company Accounting Oversight Board (United States) and as required by the Securities Act.
(s)
Title to Real and Personal Property
. The Company and its subsidiaries have good and marketable title in fee simple (in the
case of real property) to, or have valid and marketable rights to lease or otherwise use, all items of real and personal property and assets that are material to the respective businesses of the Company and its subsidiaries, in each case free and
clear of all liens, encumbrances, claims and defects and imperfections of title except those that (i) do not materially interfere with the use made and proposed to be made of such property by the Company and its subsidiaries or (ii) could
not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(t)
Title to
Intellectual Property
. The Company and its subsidiaries own or possess adequate rights to use all material patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights,
licenses and know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) necessary for the conduct of their respective businesses as currently conducted, and the conduct
of their respective businesses will not conflict in any material respect with any such rights of others. The Company and its subsidiaries have not received any notice of any claim of infringement, misappropriation or conflict with any such rights of
others in connection with its patents, patent rights, licenses, inventions, trademarks, service marks, trade names, copyrights and know-how, which could reasonably be expected to result in a Material Adverse Effect.
(u)
No Undisclosed Relationships
. No relationship, direct or indirect, exists between or among the Company or any of its
subsidiaries, on the one hand, and the directors, officers, stockholders, customers or suppliers of the Company or any of its subsidiaries, on the other, that is required by the Securities Act to be described in the Registration Statement and the
Prospectus and that is not so described in such documents and in the Pricing Disclosure Package.
(v)
Investment Company
Act
. The Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company
will not be required to register as an “investment company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Investment Company
Act”).
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(w)
Taxes.
The Company and its subsidiaries have paid all federal, state, local and
foreign taxes and filed all tax returns required to be paid or filed through the date hereof except with respect to any taxes that are currently being contested in good faith or as would not have, individually or in the aggregate, a Material Adverse
Effect; and except as otherwise disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there is no tax deficiency that has been, or could reasonably be expected to be, asserted against the Company or any of its
subsidiaries or any of their respective properties or assets, except for tax deficiencies that would not, individually or in the aggregate, have a Material Adverse Effect.
(x)
Licenses and Permits.
The Company and its subsidiaries possess all licenses, certificates, permits and other authorizations
issued by, and have made all declarations and filings with, the appropriate federal, state, local or foreign governmental or regulatory authorities that are necessary for the ownership or lease of their respective properties or the conduct of their
respective businesses as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, except where the failure to possess or make the same would not, individually or in the aggregate, have a Material Adverse Effect;
and except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, neither the Company nor any of its subsidiaries has received notice of any revocation or modification of any such license, certificate, permit
or authorization or has any reason to believe that any such license, certificate, permit or authorization will not be renewed in the ordinary course, except where the failure to renew would not, individually or in the aggregate, have a Material
Adverse Effect.
(y)
No Labor Disputes.
No labor disturbance by or dispute with employees of the Company or any of
its subsidiaries exists or, to the knowledge of the Company, is contemplated or threatened, and the Company is not aware of any existing or imminent labor disturbance by, or dispute with, the employees of any of its or its subsidiaries’
principal suppliers, contractors or customers, in each case except as would not have a Material Adverse Effect.
(z)
Compliance with and Liability under Environmental Laws.
(i) The Company and its subsidiaries (a) are, and at all prior times were, in compliance with any and all applicable federal, state, local and foreign laws, rules, regulations,
requirements, decisions, judgments, decrees, orders and the common law relating to pollution or the protection of the environment, natural resources or human health or safety, including those relating to the generation, storage, treatment, use,
handling, transportation, Release or threat of Release of Hazardous Materials (collectively, “Environmental Laws”), (b) have received and are in compliance with all permits, licenses, certificates or other authorizations or approvals
required of them under applicable Environmental Laws to conduct their respective businesses, (c) have not received notice of any actual or potential liability under or relating to, or actual or potential violation of, any Environmental Laws,
including for the investigation or remediation of any Release or threat of Release of Hazardous Materials, and have no knowledge of any event or condition that would reasonably be expected to result in any such notice, (d) are not conducting or
paying for, in whole or in part, any investigation, remediation or other corrective action pursuant to any Environmental Law at any location, and (e) are not a party to any order, decree or agreement that imposes any obligation or liability
under any Environmental Law, and (ii) there are no costs or liabilities associated with Environmental Laws of or relating to the Company or its subsidiaries, except in the case of each of (i) and (ii) above, for any such matter, as
would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and (iii) except as
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described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, (a) there are no proceedings that are pending, or that are known to be contemplated, against the
Company or any of its subsidiaries under any Environmental Laws in which a governmental entity is also a party, other than such proceedings regarding which it is reasonably believed no monetary sanctions of $100,000 or more will be imposed,
(b) the Company and its subsidiaries are not aware of any facts or issues regarding compliance with Environmental Laws, or liabilities or other obligations under Environmental Laws, including the Release or threat of Release of Hazardous
Materials, that could reasonably be expected to have a material effect on the capital expenditures, earnings or competitive position of the Company and its subsidiaries, and (c) none of the Company and its subsidiaries anticipates material
capital expenditures relating to any Environmental Laws. “Hazardous Materials” means any material, chemical, substance, waste, pollutant, contaminant, compound, mixture, or constituent thereof, in any form or amount, including petroleum
(including crude oil or any fraction thereof) and petroleum products, natural gas liquids, asbestos and asbestos containing materials, naturally occurring radioactive materials, brine, and drilling mud, regulated or which can give rise to liability
under any Environmental Law. “Release” means any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, dispersing, or migrating in, into or through the
environment, or in, into from or through any building or structure.
(aa)
Hazardous Materials
. There has been no storage,
generation, transportation, use, handling, treatment, Release or threat of Release of Hazardous Materials by, relating to or caused by the Company or any of its subsidiaries (or, to the knowledge of the Company and its subsidiaries, any other entity
(including any predecessor) for whose acts or omissions the Company or any of its subsidiaries is or could reasonably be expected to be liable) at, on, under or from any property or facility now or previously owned, operated or leased by the Company
or any of its subsidiaries, or at, on, under or from any other property or facility, in violation of any Environmental Laws or in a manner or amount or to a location that could reasonably be expected to result in any liability under any
Environmental Law, except for any violation or liability which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(bb)
Compliance with ERISA.
(i) Each employee benefit plan, within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), for which the Company or any member of its “Controlled Group” (defined as any organization which is a member of a controlled group of corporations within the meaning
of Section 414 of the Internal Revenue Code of 1986, as amended (the “Code”)) would have any liability (each, a “Plan”) has been maintained in compliance with its terms and the requirements of any applicable statutes,
orders, rules and regulations, including but not limited to ERISA and the Code, except for noncompliance that could not reasonably be expected to result in material liability to the Company or its subsidiaries; (ii) no prohibited transaction,
within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Plan excluding transactions effected pursuant to a statutory or administrative exemption that could reasonably be expected to result
in a material liability to the Company or its subsidiaries; (iii) for each Plan that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, the applicable minimum funding standard of Sections 412, 430 and
431 of the Code or Sections 302, 303 and 304 of ERISA, as applicable, has been satisfied (without taking into account any waiver
11
thereof or extension of any amortization period) and is reasonably expected to be satisfied in the future (without taking into account any waiver thereof or extension of any amortization period),
and no Plan is currently, and none is reasonably expected to be, in “at risk status” within the meaning of Section 303(i) of ERISA or Section 430(i) of the Code; (iv) the fair market value of the assets of each Plan subject
to Section 401(a) of the Code exceeds the present value of all benefits accrued under such Plan (determined based on those assumptions used to fund such Plan); (v) no “reportable event” (within the meaning of Section 4043(c)
of ERISA) has occurred or is reasonably expected to occur that either has resulted, or could reasonably be expected to result, in material liability to the Company or its subsidiaries; (vi) neither the Company nor any member of the Controlled
Group has incurred, nor reasonably expects to incur, any liability under Title IV of ERISA (other than contributions to the Plan or premiums to the PBGC, in the ordinary course and without default) in respect of a Plan (including a
“multiemployer plan,” within the meaning of Section 4001(a)(3) of ERISA); and (vii) there is no pending audit or investigation by the Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty
Corporation or any other governmental agency or any foreign regulatory agency with respect to any Plan that could reasonably be expected to result in material liability to the Company or its subsidiaries. None of the following events has occurred or
is reasonably likely to occur: (x) a material increase in the aggregate amount of contributions required to be made to all Plans by the Company or its subsidiaries in the current fiscal year of the Company and its subsidiaries compared to the
amount of such contributions made in the Company and its subsidiaries’ most recently completed fiscal year; or (y) a material increase in the Company and its subsidiaries’ “accumulated post-retirement benefit obligations”
(within the meaning of Statement of Financial Accounting Standards 106) compared to the amount of such obligations in the Company and its subsidiaries’ most recently completed fiscal year.
(cc)
Disclosure Controls
. The Company and its subsidiaries maintain an effective system of “disclosure controls and
procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that complies with the requirements of the Exchange Act and that has been designed to ensure that information required to be disclosed by the Company in reports that it files or
submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission’s rules and forms, including controls and procedures designed to ensure that such information is accumulated and
communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure. The Company and its subsidiaries have carried out evaluations of the effectiveness of their disclosure controls and procedures as
required by Rule 13a-15 of the Exchange Act.
(dd)
Accounting Controls.
The Company and its subsidiaries maintain
systems of “internal control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that comply with the requirements of the Exchange Act and have been designed by, or under the supervision of, their respective
principal executive and principal financial officers, or persons performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in
accordance with GAAP, including, but not limited to, internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general
12
or specific authorization; (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any
differences and (v) interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus has been prepared in accordance with the Commission’s
rules and guidelines applicable thereto. There are no material weaknesses in the Company’s internal controls. The Company’s auditors and the Audit Committee of the Board of Directors of the Company have been advised of: (i) all
significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which have adversely affected or are reasonably likely to adversely affect the Company’s ability to record, process,
summarize and report financial information; and (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls over financial reporting.
(ee)
Insurance.
The Company and its subsidiaries have insurance covering their respective properties, operations, personnel and
businesses, including business interruption insurance, which insurance is in amounts and insures against such losses and risks as are adequate, in the reasonable belief of the Company, to protect the Company and its subsidiaries and their respective
businesses; neither the Company nor any of its subsidiaries has received notice from any insurer or agent of such insurer that capital improvements or other material expenditures are required or necessary to be made in order to continue such
insurance; and except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company reasonably believes that it will be able to renew its existing insurance coverage as and when such coverage expires or
obtain similar coverage at reasonable cost from similar insurers as may be necessary to continue its business.
(ff)
No
Unlawful Payments.
Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee or other person associated with or acting on behalf of the Company or any of its subsidiaries has
(i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or
employee from corporate funds; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment.
(gg)
Compliance with Money Laundering Laws
. The operations of the Company and its subsidiaries are and have been conducted at
all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(hh)
Compliance with OFAC.
None of the Company, any of its subsidiaries or, to the knowledge of the Company, any director,
officer, agent, employee or affiliate of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of
13
Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”); and the Company will not, directly or indirectly, use the proceeds of the offering of the Securities hereunder,
or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(ii)
No Restrictions on Subsidiaries
. Except in each case as otherwise disclosed in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, no subsidiary of the Company is currently prohibited, directly or indirectly, under any agreement or other instrument to which it is a party or is subject, from paying any dividends to the Company, from making
any other distribution on such subsidiary’s capital stock, from repaying to the Company any loans or advances to such subsidiary from the Company or from transferring any of such subsidiary’s properties or assets to the Company or any
other subsidiary of the Company.
(jj)
No Broker’s Fees.
Neither the Company nor any of its subsidiaries is a
party to any contract, agreement or understanding with any person (other than this Agreement) that would give rise to a valid claim against the Company or any of its subsidiaries or any Underwriter for a brokerage commission, finder’s fee or
like payment in connection with the offering and sale of the Securities.
(kk)
No Registration Rights
. No person has
the right to require the Company or any of its subsidiaries to register any securities for sale under the Securities Act by reason of the filing of the Registration Statement with the Commission or the issuance and sale of the Securities.
(ll)
No Stabilization.
The Company has not taken, directly or indirectly, any action designed to or that could
reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.
(mm)
Margin Rules
. The application of the proceeds received by the Company from the issuance, sale and delivery of the Securities as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus will not violate
Regulation T, U or X of the Board of Governors of the Federal Reserve System or any other regulation of such Board of Governors.
(nn)
Forward-Looking Statements.
No forward-looking statement (within the meaning of Section 27A of the Securities Act and
Section 21E of the Exchange Act) contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(oo)
Statistical and Market Data.
The statistical and market-related data included in the Registration Statement, the Pricing
Disclosure Package and the Prospectus are based on or derived from sources that the Company reasonably believes are reliable and accurate in all material respects.
(pp)
Sarbanes-Oxley Act
. There is and has been no failure on the part of the Company or, to the knowledge of the Company, any of the
Company’s directors or officers, in their capacities as such, to comply with any provision of the Sarbanes-Oxley Act and the rules and regulations promulgated in connection therewith, including Section 402 related to loans and Sections 302
and 906 related to certifications.
14
(qq)
Status under the Securities Act
. At the time of filing the Registration
Statement and any post-effective amendment thereto, at the earliest time thereafter that the Company or any offering participant made a
bona fide
offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Securities and at
the date hereof, the Company was not and is not an “ineligible issuer,” and is a “well-known seasoned issuer,” in each case as defined in Rule 405 under the Securities Act. The Company has paid the registration fee for this
offering pursuant to Rule 456(b)(1) under the Securities Act or will pay such fee within the time period required by such rule (without giving effect to the proviso therein) and in any event prior to the Closing Date.
(rr)
Bank Regulatory Authorities.
Each of the Company and its subsidiaries are in compliance with all applicable laws
administered by, and all rules and regulations of, the Board of Governors of the Federal Reserve System (the “Federal Reserve Board”), the Federal Deposit Insurance Corporation (the “FDIC”), the Office of the Comptroller of the
Currency (the “OCC”), the Georgia Department of Banking and Finance, and any other federal or state bank regulatory authorities with jurisdiction over the Company or its subsidiaries (collectively, the “Bank Regulatory
Authorities”), except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus or where such noncompliance would not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect. The deposit accounts of the Company and its subsidiaries are insured up to applicable limits by the FDIC and no proceedings for the termination or revocation of such insurance are pending or, to the knowledge of the Company, threatened.
Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, neither the Company nor any of its subsidiaries is a party to any written agreement or memorandum of understanding with, or a party to any
commitment letter or similar undertaking to, or is subject to any order or directive by, or is a recipient of any extraordinary supervisory letter from, or has adopted any board of director resolutions at the request of, any Bank Regulatory
Authority which currently restricts the conduct of its business, or relates to its capital adequacy, its credit policies or its management, in each case that are applicable to the Company or its subsidiaries specifically rather than to banks and
bank holding companies generally.
4.
Further Agreements of the Company
. The Company covenants and agrees with each Underwriter that:
(a)
Required Filings
. The Company will file the final Prospectus with the Commission within the time periods specified by
Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act, will file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the Securities Act; will file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities; and will furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the extent not previously delivered) to the Underwriters in New York City prior to 10:00 a.m., Eastern
time, on the second business day next succeeding the date of this Agreement in such quantities as the Representative may reasonably request. The Company will pay the registration fee for this offering within the time period required by Rule
456(b)(1) under the Securities Act (without giving effect to the proviso therein) and in any event prior to the Closing Date.
15
(b)
Delivery of Copies.
The Company will deliver, without charge, (i) to the
Representative, two signed copies of the Registration Statement as originally filed and each amendment thereto, in each case including all exhibits and consents filed therewith; and (ii) to each Underwriter (A) a conformed electronic copy
of the Registration Statement as originally filed and each amendment thereto (without exhibits) and (B) during the Prospectus Delivery Period (as defined below), as many copies of the Prospectus (including all amendments and supplements thereto
and documents incorporated by reference therein and each Issuer Free Writing Prospectus) as the Representative may reasonably request. As used herein, the term “Prospectus Delivery Period” means such period of time after the first date of
the public offering of the Securities as in the opinion of counsel for the Underwriters a prospectus relating to the Securities is required by law to be delivered (or required to be delivered but for Rule 172 under the Securities Act) in connection
with sales of the Securities by any Underwriter or dealer.
(c)
Amendments or Supplements, Issuer Free Writing
Prospectuses.
Before preparing, using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before filing any amendment or supplement to the Registration Statement or the Prospectus, the Company will furnish to
the Representative and counsel for the Underwriters a copy of the proposed Issuer Free Writing Prospectus, amendment or supplement for review and will not prepare, use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus or
file any such proposed amendment or supplement to which the Representative reasonably objects.
(d)
Notice to the
Representative.
The Company will advise the Representative promptly, and confirm such advice in writing, (i) when any amendment to the Registration Statement has been filed or becomes effective; (ii) when any supplement to the
Prospectus or any Issuer Free Writing Prospectus or any amendment to the Prospectus has been filed; (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or the
receipt of any comments from the Commission relating to the Registration Statement or any other request by the Commission for any additional information; (iv) of the issuance by the Commission of any order suspending the effectiveness of the
Registration Statement or preventing or suspending the use of the Preliminary Prospectus, any of the Pricing Disclosure Package or the Prospectus or the initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of
the Securities Act; (v) of the occurrence of any event within the Prospectus Delivery Period as a result of which the Prospectus, the Pricing Disclosure Package or any Issuer Free Writing Prospectus as then amended or supplemented would include
any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus, the Pricing Disclosure Package or any such Issuer Free
Writing Prospectus is delivered to a purchaser, not misleading; (vi) of the receipt by the Company of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Securities Act; and (vii) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Securities for offer and sale in any jurisdiction or the initiation or threatening of any
proceeding
16
for such purpose; and the Company will use its commercially reasonable efforts to prevent the issuance of any such order suspending the effectiveness of the Registration Statement, preventing or
suspending the use of the Preliminary Prospectus, any of the Pricing Disclosure Package or the Prospectus or suspending any such qualification of the Securities and, if any such order is issued, will obtain as soon as possible the withdrawal
thereof.
(e)
Ongoing Compliance.
(1) If during the Prospectus Delivery Period (i) any event shall occur or
condition shall exist as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the Prospectus to comply with law, the Company will immediately notify the Underwriters thereof and forthwith
prepare and, subject to paragraph (c) above, file with the Commission and furnish to the Underwriters and to such dealers as the Representative may designate such amendments or supplements to the Prospectus as may be necessary so that the
statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply with law and (2) if at any time
prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which the Pricing Disclosure Package as then amended or supplemented would include any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances existing when the Pricing Disclosure Package is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the Pricing
Disclosure Package to comply with law, the Company will immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission (to the extent required) and furnish to the Underwriters and
to such dealers as the Representative may designate such amendments or supplements to the Pricing Disclosure Package as may be necessary so that the statements in the Pricing Disclosure Package as so amended or supplemented will not, in the light of
the circumstances existing when the Pricing Disclosure Package is delivered to a purchaser, be misleading or so that the Pricing Disclosure Package will comply with law.
(f)
Blue Sky Compliance.
The Company will qualify the Securities for offer and sale under the securities or Blue Sky laws of
such jurisdictions as the Representative shall reasonably request and will continue such qualifications in effect so long as required for distribution of the Securities;
provided
that the Company shall not be required to (i) qualify as a
foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject
itself to taxation in any such jurisdiction if it is not otherwise so subject.
(g)
Earning Statement.
The Company
will make generally available to its security holders and the Representative as soon as practicable an earning statement that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated thereunder
covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the “effective date” (as defined in Rule 158) of the Registration Statement.
17
(h)
Clear Market.
During the period from the date hereof through and including the
Closing Date, the Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any debt securities issued by the Company or guaranteed by the Company and having a tenor of more than one year, without the
prior written consent of the Representative.
(i)
Use of Proceeds.
The Company will apply the net proceeds from the
sale of the Securities as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus under the heading “Use of Proceeds.”
(j)
No Stabilization.
The Company will not take, directly or indirectly, any action designed to or that could reasonably be
expected to cause or result in any stabilization or manipulation of the price of the Securities.
(k)
Reports.
So
long as the Securities are outstanding, the Company will make available to the Representative, promptly after they are available, copies of all reports or other communications (financial or other) furnished to holders of the Securities, and copies
of any reports and financial statements furnished to or filed with the Commission;
provided
the Company will be deemed to have furnished such reports and financial statements to the Representative to the extent they are filed on the
Commission’s Electronic Data Gathering, Analysis, and Retrieval system.
(l)
Record Retention
. The Company will,
pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.
5.
Certain Agreements of the Underwriters
. Each Underwriter hereby represents and agrees that:
It has not used, authorized use of, referred to or participated in the planning for use of, and will not use, authorize use of, refer to or
participate in the planning for use of, any “free writing prospectus,” as defined in Rule 405 under the Securities Act (which term includes use of any written information furnished to the Commission by the Company and not incorporated by
reference into the Registration Statement and any press release issued by the Company) other than (i) a free writing prospectus that contains no “issuer information” (as defined in Rule 433(h)(2) under the Securities Act) that was not
included (including through incorporation by reference) in the Preliminary Prospectus or a previously filed Issuer Free Writing Prospectus, (ii) any Issuer Free Writing Prospectus listed on Annex A or prepared pursuant to Section 3(c) or
Section 4(c) above (including any electronic road show), or (iii) any free writing prospectus prepared by such underwriter and approved by the Company in advance in writing (each such free writing prospectus referred to in clauses
(i) or (iii), an “Underwriter Free Writing Prospectus”).
It has not and will not, without the prior written consent of the
Company, use any free writing prospectus that contains the final terms of the Securities unless such terms have previously been included in a free writing prospectus filed with the Commission.
18
It is not subject to any pending proceeding under Section 8A of the Securities Act with
respect to the offering of the Securities (and will promptly notify the Company if any such proceeding against it is initiated during the Prospectus Delivery Period).
6.
Conditions of Underwriters’ Obligations
. The obligation of each Underwriter to purchase the Securities on the Closing Date as provided herein
is subject to the performance by the Company of its covenants and other obligations hereunder and to the following additional conditions:
(a)
Registration Compliance; No Stop Order.
No order suspending the effectiveness of the Registration Statement shall be in
effect, and no proceeding for such purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have
been timely filed with the Commission under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with Section 4(a) hereof; and all requests by the
Commission for additional information shall have been complied with to the reasonable satisfaction of the Representative.
(b)
Representations and Warranties.
The representations and warranties of the Company contained herein shall be true and correct
on the date hereof and on and as of the Closing Date; and the statements of the Company and its officers made in any certificates delivered pursuant to this Agreement shall be true and correct on and as of the Closing Date.
(c)
No Downgrade.
Subsequent to the earlier of (A) the Applicable Time and (B) the execution and delivery of this
Agreement, if there are any debt securities, including the Securities, or preferred stock of, or guaranteed by, the Company or any of its subsidiaries that are rated by a “nationally recognized statistical rating organization,” as such
term is defined by the Commission for purposes of Section 3(a)(62) of the Exchange Act, (i) no downgrading shall have occurred in the rating accorded any such debt securities or preferred stock and (ii) no such organization shall have
publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of any such debt securities or preferred stock (other than an announcement with positive implications of a possible upgrading).
(d)
No Material Adverse Change.
No event or condition of a type described in Section 3(g) hereof shall have
occurred or shall exist, which event or condition is not described in the Pricing Disclosure Package (excluding any amendment or supplement thereto) and the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the
judgment of the Representative makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the Closing Date, on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package
and the Prospectus.
(e)
Officers’ Certificate.
The Representative shall have received on and as of the Closing
Date a certificate of the chief financial officer or chief accounting officer of the Company and one additional senior executive officer of the Company who is satisfactory to the Representative (i) confirming that such officers have carefully
reviewed the Registration Statement, the Pricing Disclosure Package and the Prospectus and, to the knowledge of such officers, the representations set forth in Sections 3(b) and 3(d) hereof are true and correct,
19
(ii) confirming that the other representations and warranties of the Company in this Agreement are true and correct and that the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and (iii) to the effect set forth in paragraphs (a), (c) and (d) above.
(f)
Comfort Letters.
On the date of this Agreement and on the Closing Date, KPMG LLP shall have furnished to the Representative,
at the request of the Company, letters, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type
customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the Pricing
Disclosure Package and the Prospectus;
provided
, that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such Closing Date.
(g)
Opinion Letter and 10b-5 Statement.
Alston & Bird LLP, special counsel for the Company, shall have furnished to the
Representative, at the request of the Company, a written opinion letter and a 10b-5 statement, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representative.
(h)
Opinion Letter and 10b-5 Statement of Counsel for the Underwriters.
The Representative shall have received on and as of the
Closing Date an opinion letter and 10b-5 statement of Troutman Sanders LLP, counsel for the Underwriters, with respect to such matters as the Representative may reasonably request, and such counsel shall have received such documents and information
as they may reasonably request to enable them to pass upon such matters.
(i)
No Legal Impediment to Issuance.
No
action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date prevent the issuance or sale
of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date prevent the issuance or sale of the Securities.
(j)
Good Standing
. The Representative shall have received on and as of the Closing Date satisfactory evidence of the good
standing of the Company and its Significant Subsidiaries in their respective jurisdictions of organization and their good standing as foreign entities in such other jurisdictions as the Representative may reasonably request, in each case in writing
or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k)
Clearance, Settlement and Trading.
On or prior to the Closing Date the Securities shall be eligible for clearance, settlement and trading in book-entry form through the facilities of DTC.
20
(l)
Additional Documents.
On or prior to the Closing Date the Company shall have
furnished to the Representative such further certificates and documents as the Representative may reasonably request.
All
opinions, letters, certificates and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the
Underwriters.
7.
Indemnification and Contribution
.
(a)
Indemnification of the Underwriters.
The Company agrees to indemnify and hold harmless each Underwriter, its affiliates,
directors, officers, partners and selling agents and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that arise out of, or
are based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or caused by any omission or alleged omission to state therein a material fact required to be stated therein or
necessary in order to make the statements therein, not misleading, (ii) any untrue statement or alleged untrue statement of a material fact contained in the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing
Prospectus, any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Securities Act or any Pricing Disclosure Package (including any Pricing Disclosure Package that has subsequently been amended), or caused
by any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or (iii) any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary to make the statements therein, when considered in conjunction with the
Prospectus or the Pricing Disclosure Package, not misleading, in each case except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with any information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representative expressly for use therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information described as such in subsection (b) below.
(b)
Indemnification of the Company.
Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who signed the Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities
that arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to such Underwriter furnished to the Company in writing by such
Underwriter through the Representative expressly for use in the Registration Statement, the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or any Pricing Disclosure
21
Package, it being understood and agreed upon that the only such information furnished by any Underwriter consists of the following information in the Prospectus furnished on behalf of each
Underwriter: the concession figures appearing in the second paragraph under the caption “Underwriting” and the information under the subheading “Price Stabilization, Short Positions” under the caption “Underwriting”.
(c)
Notice and Procedures.
If any suit, action, proceeding (including any governmental or regulatory investigation), claim
or demand shall be brought or asserted against any person in respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such person (the “Indemnified Person”) shall promptly notify the person
against whom such indemnification may be sought (the “Indemnifying Person”) in writing;
provided
that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have under paragraph (a) or
(b) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and
provided
,
further
, that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have to an Indemnified Person otherwise than under paragraph (a) or (b) above. If any such proceeding shall be brought or asserted against an Indemnified Person and it shall have notified the
Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person (who shall not, without the consent of the Indemnified Person, be counsel to the Indemnifying Person) to represent the
Indemnified Person in such proceeding and shall pay the fees and expenses of such counsel related to such proceeding, as incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a
reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those
available to the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interest between them. It is understood and agreed that the Indemnifying Person shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for
the fees and expenses of more than one separate firm (in addition to any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be paid or reimbursed as they are incurred. Any such separate firm for any Underwriter,
its affiliates, directors, officers, partners and selling agents and any control persons of such Underwriter shall be designated in writing by the Representative and any such separate firm for the Company, its directors, its officers who signed the
Registration Statement and any control persons of the Company shall be designated in writing by the Company. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person reimburse the Indemnified Person for fees and expenses of counsel as contemplated by this paragraph, the Indemnifying Person shall be liable for any
settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by the
22
Indemnifying Person of such request and (ii) the Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such request prior to the date of such settlement. No
Indemnifying Person shall, without the written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnification could have
been sought hereunder by such Indemnified Person, unless such settlement (x) includes an unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims
that are the subject matter of such proceeding and (y) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.
(d)
Contribution.
If the indemnification provided for in paragraphs (a) and (b) above is unavailable to an Indemnified
Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid
or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and the Underwriters on the
other, from the offering of the Securities or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause
(i) but also the relative fault of the Company, on the one hand, and the Underwriters on the other, in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company, on the one hand, and the Underwriters on the other, shall be deemed to be in the same respective proportions as the net proceeds (before deducting expenses) received by the
Company from the sale of the Securities and the total underwriting discounts and commissions received by the Underwriters in connection therewith, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate offering
price of the Securities. The relative fault of the Company, on the one hand, and the Underwriters on the other, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the Company or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement
or omission.
(e)
Limitation on Liability.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by
pro rata
allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses incurred by such Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of this Section 7, in no event shall an Underwriter be
required to contribute any amount in excess of the amount by which the total underwriting discounts and commissions received by such Underwriter with respect to the offering of the Securities exceeds the amount of any damages that such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. For purposes of this Section 7, each person, if
23
any, who controls an Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and each Underwriter’s Affiliates, directors, officers,
partners and selling agents shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to this Section 7 are several in proportion to their respective
purchase obligations hereunder and not joint.
(f)
Non-Exclusive Remedies.
The remedies provided for in this Section 7
are not exclusive and shall not limit any rights or remedies which may otherwise be available to any Indemnified Person at law or in equity.
8.
Effectiveness of Agreement
. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
9.
Termination
. This Agreement may be terminated in the absolute discretion of the Representative, by notice to the Company, if after the execution and delivery of this Agreement and prior to the Closing Date (i) trading generally shall
have been suspended or materially limited on or by any of the New York Stock Exchange, the NYSE MKT LLC, the Nasdaq Stock Market, the Chicago Board Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade; (ii) trading of
any securities issued or guaranteed by the Company shall have been suspended on any exchange or in any over-the-counter market; (iii) a general moratorium on commercial banking activities shall have been declared by federal or New York State
authorities; or (iv) there shall have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis, either within or outside the United States, that, in the judgment of the Representative, is
material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the Closing Date on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the
Prospectus.
10.
Defaulting Underwriter
.
If, on the Closing Date any Underwriter defaults on its obligation to purchase the Securities that it has agreed to purchase hereunder on such
date, the non-defaulting Underwriters may in their discretion arrange for the purchase of such Securities by other persons satisfactory to the Company on the terms contained in this Agreement. If, within 24 hours after any such default by any
Underwriter, the non-defaulting Underwriters do not arrange for the purchase of such Securities, then the Company shall be entitled to a further period of 24 hours within which to procure other persons satisfactory to the non-defaulting Underwriters
to purchase such Securities on such terms. If other persons become obligated or agree to purchase the Securities of a defaulting Underwriter, either the non-defaulting Underwriters or the Company may postpone the Closing Date for up to five full
business days in order to effect any changes that in the opinion of counsel for the Company or counsel for the Underwriters may be necessary in the
24
Registration Statement and the Prospectus or in any other document or arrangement, and the Company agrees to promptly prepare any amendment or supplement to the Registration Statement and the
Prospectus that effects any such changes. As used in this Agreement, the term “Underwriter” includes, for all purposes of this Agreement unless the context otherwise requires, any person not listed in Schedule 1 hereto that, pursuant to
this Section 10, purchases Securities that a defaulting Underwriter agreed but failed to purchase.
If, after giving effect to any
arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in paragraph (a) above, the aggregate principal amount of Securities that remain
unpurchased on the Closing Date does not exceed one-tenth of the aggregate principal amount of Securities to be purchased on such date, then the Company shall have the right to require each non-defaulting Underwriter to purchase the principal amount
of Securities that such Underwriter agreed to purchase hereunder on such date plus such Underwriter’s pro rata share (based on the number of Securities that such Underwriter agreed to purchase on such date) of the Securities of such defaulting
Underwriter or Underwriters for which such arrangements have not been made.
If, after giving effect to any arrangements for the purchase
of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in paragraph (a) above, the aggregate number of Securities that remain unpurchased on the Closing Date exceeds
one-tenth of the aggregate principal amount of Securities to be purchased on such date, or if the Company shall not exercise the right described in paragraph (b) above, then this Agreement shall terminate without liability on the part of the
non-defaulting Underwriters. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of the Company, except that the Company will continue to be liable for the payment of expenses as set forth in
Section 11 hereof and except that the provisions of Section 7 hereof shall not terminate and shall remain in effect.
Nothing
contained herein shall relieve a defaulting Underwriter of any liability it may have to the Company or any non-defaulting Underwriter for damages caused by its default.
11.
Payment of Expenses
.
Whether or not
the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all costs and expenses incident to the performance of its obligations hereunder, including without limitation,
(i) the costs incident to the authorization, issuance, sale, preparation and delivery of the Securities and any taxes payable in that connection; (ii) the costs incident to the preparation, printing and filing under the Securities Act of
the Registration Statement, the Preliminary Prospectus, any Issuer Free Writing Prospectus, any Pricing Disclosure Package and the Prospectus (including all exhibits, amendments and supplements thereto) and the distribution thereof; (iii) the
fees and expenses of the Company’s counsel and independent accountants; (iv) the fees and expenses incurred in connection with the registration or qualification of the Securities under the state or foreign securities or blue sky laws of
such jurisdictions as the Representative may reasonably designate and with the preparation, printing and distribution of any Blue Sky Memorandum (including the related fees and expenses of counsel for the Underwriters); (v) the cost of
preparing the Securities; (vi) the costs and charges of any trustee, registrar or paying or
25
authenticating agent for the Securities; (vii) any fees charged by rating agencies for rating the Securities; (viii) all expenses and application fees incurred in connection with any
filing with, and clearance of the offering by, FINRA; and (ix) all expenses incurred by the Company in connection with any “road show” presentation to potential investors.
If (i) this Agreement is terminated pursuant to Section 9, (ii) the Company for any reason fails to tender the Securities for
delivery to the Underwriters or (iii) the Underwriters decline to purchase the Securities for any reason permitted under this Agreement, the Company agrees to reimburse the Underwriters for all out-of-pocket costs and expenses (including the
reasonable fees and expenses of their counsel) reasonably incurred by the Underwriters in connection with this Agreement and the offering contemplated hereby.
12.
Persons Entitled to Benefit of Agreement
. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective
successors and the officers, directors, partners, selling agents and any controlling persons referred to in Section 7 hereof. Nothing in this Agreement is intended or shall be construed to give any other person any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision contained herein. No purchaser of Securities from any Underwriter shall be deemed to be a successor merely by reason of such purchase.
13.
Survival
. The respective indemnities, rights of contribution, representations, warranties and agreements of the Company and the Underwriters
contained in this Agreement or made by or on behalf of the Company or the Underwriters pursuant to this Agreement or any certificate delivered pursuant hereto shall survive the delivery of and payment for the Securities and shall remain in full
force and effect, regardless of any termination of this Agreement or any investigation made by or on behalf of the Company or the Underwriters.
14.
Certain Defined Terms
. For purposes of this Agreement, (a) except where otherwise expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities Act; (b) the term “business
day” means any day other than a day on which banks are permitted or required to be closed in New York City; and (c) the term “subsidiary” has the meaning set forth in Rule 405 under the Securities Act.
15.
Miscellaneous
.
(a)
Authority of the Representative.
Any action by the Underwriters hereunder may be taken by the Representative on behalf of the Underwriters, and any such action taken by the Representative shall be binding upon the Underwriters.
(b)
Notices.
All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted and confirmed by any standard form of telecommunication. Notices to the Underwriters shall be given to the Representative at Sandler O’Neill + Partners, L.P., 1251 Avenue of the Americas, 6
th
Floor, New York, New York 10020; Attention: General Counsel (facsimile: (212) 466-7797). Notices to the Company shall be given to it at 1111 Bay Avenue, Suite 500, Columbus, Georgia 31902;
Attention: Chief Financial Officer (with a copy to the General Counsel) (facsimile: (706) 644-1957).
26
(c)
Governing Law.
This Agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to agreements made and to be performed in such state.
(d)
Counterparts.
This Agreement may be signed in counterparts (which may include counterparts delivered by any standard form of telecommunication), each of which shall be an original and all of which together shall constitute one and the same
instrument.
(e)
Amendments or Waivers.
No amendment or waiver of any provision of this Agreement, nor any consent or
approval to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto.
(f)
Headings.
The headings herein are included for convenience of reference only and are not intended to be part of, or to
affect the meaning or interpretation of, this Agreement.
(g)
USA Patriot Act.
In accordance with the requirements of the
USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may
include the name and address of their respective clients, as well as other information that will allow the underwriters to properly identify their respective clients.
If the foregoing is in accordance with your understanding, please indicate your acceptance of this Agreement by signing in the space provided
below.
27
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Very truly yours,
SYNOVUS FINANCIAL CORP.
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By:
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/s/ Kessel D. Stelling Jr.
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Name:
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Kessel D. Stelling Jr.
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Title:
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Chairman of the Board,
President and
Chief
Executive Officer
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[ Signature page to underwriting agreement ]
28
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Accepted: December 2, 2015
SANDLER O’NEILL & PARTNERS, L.P.
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By:
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Sandler O’Neill & Partners, Corp.,
the sole general partner
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By:
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/s/ Robert A. Kleinert
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Name: Robert A. Kleinert
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Title: An Officer of the Corporation
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[ Signature page to underwriting agreement ]
29
Schedule I
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Underwriter
|
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Aggregate
Principal
Amount of
Securities
|
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Sandler O’Neill & Partners, L.P.
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$
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250,000,000
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|
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Total
|
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$
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250,000,000
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30
Schedule II
Pricing Term Sheet
31
Filed Pursuant to Rule 433
Registration No. 333-190011
December 2, 2015
Synovus Financial Corp.
$250,000,000
5.75%
Fixed-to-Floating Rate Subordinated Notes due 2025
Term Sheet
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Issuer:
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Synovus Financial Corp. (the “Company”)
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Security:
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5.75% Fixed-to-Floating Rate Subordinated Notes due 2025 (the “Notes”)
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Aggregate Principal Amount:
|
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$250,000,000
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Rating:
|
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S&P: BB-; Fitch: BB+
A rating is not a
recommendation to buy, sell or hold securities. Ratings may be subject to revision or withdrawal at any time by the assigning rating organization. Each rating should be evaluated independently of any other rating.
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Trade Date:
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December 2, 2015
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Settlement Date (T+3):
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December 7, 2015
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Final Maturity (if not previously redeemed):
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December 15, 2025
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Reference Benchmark:
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UST 2.25% due November 15, 2025
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Benchmark Yield:
|
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2.176%
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Spread to Benchmark:
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+357.4 bps
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Yield to Investors:
|
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5.75%
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Coupon:
|
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5.75% per annum, from and including December 7, 2015, to, but excluding, December 15, 2020, payable semi-annually in arrears. From and including December 15, 2020 through maturity or earlier redemption, the interest rate shall
reset quarterly to an interest rate per annum equal to the then current three-month LIBOR rate plus 418.2 basis points, payable quarterly in arrears.
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Issue Price to Investors:
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100%
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Interest Payment Dates:
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Interest on the Notes will be payable on June 15 and December 15 of each year through, but not including, December 15, 2020, and thereafter on March 15, June 15, September 15 and December 15 of each year through the maturity date
or earlier redemption. The first interest payment will be made on June 15, 2016.
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Day Count Convention:
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30/360 to but excluding December 15, 2020, and, thereafter, a 360-day year and the number of days actually elapsed.
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Optional Redemption:
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The Company may, at its option, beginning with the Interest Payment Date of December 15, 2020 and on any scheduled Interest Payment Date thereafter, redeem the Notes, in whole or in part, at a redemption price equal to 100% of
the principal amount of the Notes to be redeemed plus accrued and unpaid interest to, but excluding, the date of redemption.
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32
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Special Event Redemption:
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The Notes may not be redeemed prior to December 15, 2020, except that the Company may redeem the Notes, at its option, in whole, at any time, or in part from time to time, if (i) a change or prospective change in law occurs that
could prevent us from deducting interest payable on the notes for U.S. federal income tax purposes, (ii) a subsequent event occurs that precludes the notes from being recognized as Tier 2 capital for regulatory capital purposes, or (iii) the Company
is required to register as an investment company under the Investment Company Act of 1940, as amended, in each case, at a redemption price equal to 100% of the principal amount of the Notes plus any accrued and unpaid interest through, but
excluding, the redemption date. For more information, see ‘‘Description of Notes—Redemption’’ in the preliminary prospectus supplement dated November 30, 2015.
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Denominations:
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$2,000 minimum denominations and $1,000 integral multiples thereof
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Listing and Trading Markets:
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The Company does not intend to list the Notes on any securities exchange or to have the Notes quoted on a quotation system. Currently there is no public market for the Notes and there can be no assurances that any public market
for the Notes will develop.
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Underwriters’ Discount:
|
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1.00%
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Proceeds to the Company (before expenses):
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$247,500,000
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Use of Proceeds:
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We intend to use the net proceeds from this offering for general corporate purposes, which may include, but are not limited to, potential strategic acquisitions, share repurchases and repayment of debt at or prior to its
maturity, including repurchases of our 5.125% subordinated notes due 2017 through open market or privately negotiated repurchases or other available method.
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CUSIP/ISIN:
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87161CAK1 / US87161CAK18
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Sole Manager:
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Sandler O’Neill + Partners, L.P.
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The Company has filed a shelf registration statement (File No. 333-190011) (including a base prospectus) and a related
preliminary prospectus supplement dated November 30, 2015 with the Securities and Exchange Commission (the “SEC”) for the offering to which this communication relates. Before you invest, you should read the prospectus in that
registration statement, and the related preliminary prospectus supplement and any other documents that the Company has filed with the SEC for more information about the Company and the offering. You may get these documents for free by visiting EDGAR
on the SEC website at www.sec.gov. Alternatively, the issuer, the underwriter or any dealer participating in the offering will arrange to send you the prospectus and the related preliminary prospectus supplement if you request it by calling Sandler
O’Neill + Partners, L.P. toll-free at 866-805-4128.
33
ANNEX A
ISSUER FREE WRITING PROSPECTUS
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1.
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Issuer Free-Writing Prospectus filed by the Company with the Commission on November 30, 2015 regarding the Investor Presentation
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2.
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Issuer Free-Writing Prospectus filed by the Company with the Commission on December 2, 2015 regarding Pricing Term Sheet
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34
ANNEX B
SUBSIDIARIES OF SYNOVUS FINANCIAL CORP.
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Ownership
Percentage
|
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Name
|
|
Place of
Incorporation
|
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100%
|
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Synovus Bank
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Georgia
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100%
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Synovus Trust Company, National Association
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National
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100%
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Synovus Mortgage Corp.
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Alabama
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100%
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Synovus Title, LLC
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Alabama
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100%
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Synovus Title II, LLC
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Georgia
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50%
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Sterling Place, L.L.C.
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Alabama
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100%
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W.L. Properties, Inc.
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Florida
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100%
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U.O.S. Properties, Inc.
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Florida
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40%
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Orchid, LLC
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Alabama
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100%
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The Summerton Inn, Inc.
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South Carolina
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100%
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DAL LLC
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Alabama
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100%
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KDC LLC
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Alabama
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100%
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BOP Properties, Inc.
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Florida
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100%
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BNG Beltline, LLC
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Georgia
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100%
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Fernandina Holdings, LLC
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Georgia
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100%
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Synovus RP Holdings, LLC
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Georgia
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100%
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Synovus Lofts of Greenville, LLC
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Georgia
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49.99%
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Azalea Park Partners, LLP
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Virginia
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100%
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CB&T Special Limited Partner, L.L.C.
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Georgia
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20%
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West End Redevelopment Partnership, L.P.
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Georgia
|
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100%
|
|
Synovus Burger-Phillips, LLC
|
|
Alabama
|
|
99%
|
|
Burger Phillips Building, LLC
|
|
Alabama
|
|
30%
|
|
Tuscaloosa Riverfront Development, LLC
|
|
Alabama
|
|
100%
|
|
FCB Heritage 1901 Redevelopment LLC
|
|
Alabama
|
|
99%
|
|
Heritage 1901 Redevelopment, LLC
|
|
Alabama
|
|
99.99%
|
|
CB&T Housing Fund Investor, L.L.C.
|
|
Georgia
|
|
99.99%
|
|
Tall Pines Apartments, Ltd., (L.P.)
|
|
Georgia
|
|
99%
|
|
Boston Capital Columbus Tax Credit Fund, A Limited Partnership
|
|
Massachusetts
|
|
99.99%
|
|
New Northgate Village Development Company, L.P.
|
|
Georgia
|
|
99.99%
|
|
CB&T State Tax Credit Fund, L.L.C.
|
|
Georgia
|
|
0.01%
|
|
Ashton Avalon, LP
|
|
Georgia
|
|
0.01%
|
|
Baker Village Apartments I, LP
|
|
Georgia
|
|
100%
|
|
Synovus Equity Investments, Inc.
|
|
Georgia
|
|
100%
|
|
Synovus Special Limited Partner, LLC
|
|
Georgia
|
|
100%
|
|
Synovus Callier Forest, LLC
|
|
Georgia
|
|
99.99%
|
|
Callier Forest, L.P.
|
|
Alabama
|
|
100%
|
|
Synovus Union Hill, LLC
|
|
Georgia
|
|
99.99%
|
|
Union Hill Apartments, L.P.
|
|
Georgia
|
35
|
|
|
|
|
|
|
100%
|
|
Synovus Pointe Apartments, LLC
|
|
Georgia
|
|
99.99%
|
|
The Pointe Apartments, LTD
|
|
Georgia
|
|
100%
|
|
Synovus South Mall Apartments, LLC
|
|
Georgia
|
|
99.99%
|
|
Summit South Mall Apartments, Ltd.
|
|
Alabama
|
|
100%
|
|
Synovus Aspenwood Square, LLC
|
|
Georgia
|
|
99.99%
|
|
Aspenwood Square Apartments, LP
|
|
Tennessee
|
|
5.07%
|
|
ST GA Fund I LLC
|
|
Georgia
|
|
5.6%
|
|
ST GA Fund III LLC
|
|
Georgia
|
|
100%
|
|
Synovus Securities, Inc.
|
|
Georgia
|
|
100%
|
|
Broadway Asset Management, Inc.
|
|
Georgia
|
|
100%
|
|
Banking Corporation of Florida Capital Trust
|
|
Delaware
|
|
100%
|
|
Synovus Georgia State Tax Credit Fund, LLC
|
|
Georgia
|
|
77%
|
|
JT Tax Credits, LLC
|
|
Georgia
|
|
49.92%
|
|
TTP Fund II, L.P.
|
|
Georgia
|
|
27%
|
|
GAA Real Estate Partners, L.P.
|
|
Georgia
|
|
20%
|
|
Cordova Intellimedia Ventures, L.P.
|
|
Georgia
|
36
Exhibit 4.1
Execution Version
SYNOVUS FINANCIAL CORP.
as Company
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
as Trustee
SUBORDINATED INDENTURE
dated as of December 7, 2015
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
Article 1.
|
|
DEFINITIONS AND INCORPORATION BY REFERENCE
|
|
|
1
|
|
|
Section 1.01
|
|
Definitions.
|
|
|
1
|
|
|
Section 1.02
|
|
Other Definitions.
|
|
|
6
|
|
|
Section 1.03
|
|
Incorporation by Reference of Trust Indenture Act.
|
|
|
6
|
|
|
Section 1.04
|
|
Rules of Construction.
|
|
|
7
|
|
|
Article 2.
|
|
THE SECURITIES
|
|
|
7
|
|
|
Section 2.01
|
|
Form and Dating.
|
|
|
7
|
|
|
Section 2.02
|
|
Execution and Authentication.
|
|
|
7
|
|
|
Section 2.03
|
|
Amount Unlimited; Issuable in Series.
|
|
|
9
|
|
|
Section 2.04
|
|
Denomination and Date of Securities; Payments of Interest.
|
|
|
12
|
|
|
Section 2.05
|
|
Registrar and Paying Agent; Agents Generally.
|
|
|
12
|
|
|
Section 2.06
|
|
Paying Agent to Hold Money in Trust.
|
|
|
13
|
|
|
Section 2.07
|
|
Transfer and Exchange.
|
|
|
13
|
|
|
Section 2.08
|
|
Replacement Securities.
|
|
|
16
|
|
|
Section 2.09
|
|
Outstanding Securities.
|
|
|
17
|
|
|
Section 2.10
|
|
Temporary Securities.
|
|
|
18
|
|
|
Section 2.11
|
|
Cancellation.
|
|
|
18
|
|
|
Section 2.12
|
|
CUSIP Numbers.
|
|
|
18
|
|
|
Section 2.13
|
|
Defaulted Interest.
|
|
|
18
|
|
|
Section 2.14
|
|
Series May Include Tranches.
|
|
|
19
|
|
|
Article 3.
|
|
REDEMPTION
|
|
|
19
|
|
|
Section 3.01
|
|
Applicability of Article.
|
|
|
19
|
|
|
Section 3.02
|
|
Notice of Redemption; Partial Redemptions.
|
|
|
19
|
|
|
Section 3.03
|
|
Payment Of Securities Called For Redemption.
|
|
|
21
|
|
|
Section 3.04
|
|
Exclusion of Certain Securities from Eligibility for Selection for Redemption.
|
|
|
21
|
|
|
Section 3.05
|
|
Mandatory and Optional Sinking Funds.
|
|
|
22
|
|
|
Article 4.
|
|
COVENANTS
|
|
|
24
|
|
|
Section 4.01
|
|
Payment of Securities.
|
|
|
24
|
|
|
Section 4.02
|
|
Maintenance of Office or Agency.
|
|
|
25
|
|
|
Section 4.03
|
|
Securityholders’ Lists.
|
|
|
25
|
|
|
Section 4.04
|
|
Certificate to Trustee.
|
|
|
26
|
|
|
Section 4.05
|
|
Reports by the Company.
|
|
|
26
|
|
i
|
|
|
|
|
|
|
|
|
Section 4.06
|
|
Additional Amounts.
|
|
|
26
|
|
|
Article 5.
|
|
SUCCESSOR CORPORATION
|
|
|
26
|
|
|
Section 5.01
|
|
When Company May Merge, Etc.
|
|
|
26
|
|
|
Section 5.02
|
|
Successor Substituted.
|
|
|
27
|
|
|
Article 6.
|
|
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
|
|
|
27
|
|
|
Section 6.01
|
|
Events of Default.
|
|
|
27
|
|
|
Section 6.02
|
|
Payment of Securities on Default; Suit Therefor.
|
|
|
29
|
|
|
Section 6.03
|
|
Application of Money Collected by Trustee.
|
|
|
31
|
|
|
Section 6.04
|
|
Proceedings by Securityholders.
|
|
|
32
|
|
|
Section 6.05
|
|
Proceedings by Trustee.
|
|
|
32
|
|
|
Section 6.06
|
|
Remedies Cumulative and Continuing; Delay or Omission Not Waiver.
|
|
|
32
|
|
|
Section 6.07
|
|
Direction of Proceedings and Waiver of Defaults by Majority of Securityholders.
|
|
|
33
|
|
|
Section 6.08
|
|
Notice of Defaults.
|
|
|
33
|
|
|
Section 6.09
|
|
Undertaking to Pay Costs.
|
|
|
34
|
|
|
Article 7.
|
|
TRUSTEE
|
|
|
34
|
|
|
Section 7.01
|
|
General/Duties of Trustee.
|
|
|
34
|
|
|
Section 7.02
|
|
Certain Rights of Trustee.
|
|
|
35
|
|
|
Section 7.03
|
|
Individual Rights of Trustee.
|
|
|
36
|
|
|
Section 7.04
|
|
Trustee’s Disclaimer.
|
|
|
37
|
|
|
Section 7.05
|
|
(Intentionally Omitted.)
|
|
|
37
|
|
|
Section 7.06
|
|
Reports by Trustee to Holders.
|
|
|
37
|
|
|
Section 7.07
|
|
Compensation and Indemnity.
|
|
|
37
|
|
|
Section 7.08
|
|
Replacement of Trustee.
|
|
|
38
|
|
|
Section 7.09
|
|
Acceptance of Appointment by Successor.
|
|
|
39
|
|
|
Section 7.10
|
|
Successor Trustee by Merger, Etc.
|
|
|
40
|
|
|
Section 7.11
|
|
Eligibility.
|
|
|
40
|
|
|
Section 7.12
|
|
Money Held in Trust.
|
|
|
40
|
|
|
Article 8.
|
|
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
|
|
|
40
|
|
|
Section 8.01
|
|
Satisfaction and Discharge of Indenture.
|
|
|
40
|
|
|
Section 8.02
|
|
Application by Trustee of Funds Deposited for Payment of Securities.
|
|
|
41
|
|
|
Section 8.03
|
|
Repayment of Moneys Held by Paying Agent.
|
|
|
41
|
|
ii
|
|
|
|
|
|
|
|
|
Section 8.04
|
|
Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years.
|
|
|
41
|
|
|
Section 8.05
|
|
Defeasance and Discharge of Indenture.
|
|
|
42
|
|
|
Section 8.06
|
|
Defeasance of Certain Obligations.
|
|
|
43
|
|
|
Section 8.07
|
|
Reinstatement.
|
|
|
44
|
|
|
Section 8.08
|
|
Indemnity.
|
|
|
45
|
|
|
Section 8.09
|
|
Excess Funds.
|
|
|
45
|
|
|
Section 8.10
|
|
Qualifying Trustee.
|
|
|
45
|
|
|
Article 9.
|
|
AMENDMENTS, SUPPLEMENTS AND WAIVERS
|
|
|
45
|
|
|
Section 9.01
|
|
Without Consent of Holders.
|
|
|
45
|
|
|
Section 9.02
|
|
With Consent of Holders.
|
|
|
46
|
|
|
Section 9.03
|
|
Revocation and Effect of Consent.
|
|
|
47
|
|
|
Section 9.04
|
|
Notation on or Exchange of Securities.
|
|
|
47
|
|
|
Section 9.05
|
|
Trustee to Sign Amendments, Etc.
|
|
|
47
|
|
|
Section 9.06
|
|
Conformity with Trust Indenture Act.
|
|
|
48
|
|
|
Article 10.
|
|
MISCELLANEOUS
|
|
|
48
|
|
|
Section 10.01
|
|
Trust Indenture Act of 1939.
|
|
|
48
|
|
|
Section 10.02
|
|
Notices.
|
|
|
48
|
|
|
Section 10.03
|
|
Certificate and Opinion as to Conditions Precedent.
|
|
|
49
|
|
|
Section 10.04
|
|
Statements Required in Certificate or Opinion.
|
|
|
49
|
|
|
Section 10.05
|
|
Evidence of Ownership.
|
|
|
49
|
|
|
Section 10.06
|
|
Rules by Trustee, Paying Agent or Registrar.
|
|
|
51
|
|
|
Section 10.07
|
|
Payment Date Other Than a Business Day.
|
|
|
51
|
|
|
Section 10.08
|
|
Governing Law.
|
|
|
51
|
|
|
Section 10.09
|
|
New York Courts Jurisdiction and Waiver of Trial by Jury.
|
|
|
51
|
|
|
Section 10.10
|
|
No Adverse Interpretation of Other Agreements.
|
|
|
51
|
|
|
Section 10.11
|
|
Successors.
|
|
|
51
|
|
|
Section 10.12
|
|
Duplicate Originals.
|
|
|
51
|
|
|
Section 10.13
|
|
Separability.
|
|
|
52
|
|
|
Section 10.14
|
|
Table of Contents, Headings, Etc.
|
|
|
52
|
|
|
Section 10.15
|
|
Incorporators, Stockholders, Officers and Directors of Company Exempt from Individual Liability.
|
|
|
52
|
|
|
Section 10.16
|
|
Judgment Currency.
|
|
|
52
|
|
|
Section 10.17
|
|
Execution.
|
|
|
53
|
|
|
Section 10.18
|
|
FATCA.
|
|
|
53
|
|
iii
|
|
|
|
|
|
|
|
|
Article 11.
|
|
SUBORDINATION OF SECURITIES
|
|
|
53
|
|
|
|
|
Agreement to Subordinate.
|
|
|
53
|
|
|
Section 11.01
|
|
Obligation of the Company Unconditional.
|
|
|
54
|
|
|
Section 11.02
|
|
Notice to Trustee of Facts Prohibiting Payment.
|
|
|
55
|
|
|
Section 11.03
|
|
Application by Trustee of Moneys Deposited with It.
|
|
|
55
|
|
|
Section 11.04
|
|
Subrogation to Rights of Holders of Senior Indebtedness.
|
|
|
56
|
|
|
Section 11.05
|
|
Subordination Rights Not Impaired by Acts or Omissions of Company or Holders of Senior Indebtedness.
|
|
|
56
|
|
|
Section 11.06
|
|
Authorization of Trustee to Effectuate Subordination of Securities.
|
|
|
56
|
|
|
Section 11.07
|
|
Right of Trustee to Hold Senior Indebtedness.
|
|
|
56
|
|
|
Section 11.08
|
|
Article 11 Not to Prevent Events of Default.
|
|
|
57
|
|
|
Section 11.09
|
|
Article Applicable to Paying Agents.
|
|
|
57
|
|
|
Section 11.10
|
|
Reliance on Judicial Order or Certificate of Liquidating Agent.
|
|
|
57
|
|
|
Section 11.11
|
|
Trustee Not Fiduciary for Holders of Senior Indebtedness.
|
|
|
57
|
|
|
Section 11.12
|
|
Payment Permitted If No Default.
|
|
|
58
|
|
iv
SUBORDINATED INDENTURE
, dated as of December 7, 2015, between Synovus Financial
Corp., a Georgia corporation, as the Company, and The Bank of New York Mellon Trust Company, N.A., as Trustee.
RECITALS OF THE COMPANY
WHEREAS
, the Company has duly authorized the issue from time to time of its subordinated debentures, notes or other evidences
of indebtedness to be issued in one or more series (the “Securities”) up to such principal amount or amounts as may from time to time be authorized in accordance with the terms of this Indenture and to provide, among other things, for the
authentication, delivery and administration thereof, the Company has duly authorized the execution and delivery of this Indenture; and
WHEREAS
, all things necessary to make this Indenture a valid indenture and agreement according to its terms have been done;
NOW, THEREFORE
:
In consideration of the premises and the purchases of the Securities by the holders thereof, the Company and the Trustee mutually covenant and
agree for the equal and proportionate benefit of the respective holders from time to time of the Securities or of any and all series thereof and of the coupons, if any, appertaining thereto as follows:
Article 1. DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions.
“
Affiliate
” of any Person means any other Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such Person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”) when
used with respect to any Person means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
“
Agent
” means any Registrar, Paying Agent, transfer agent or Authenticating Agent.
“
Authorized Newspaper
” means a newspaper (which, in the case of The City of New York, will, if practicable, be The Wall
Street Journal (Eastern Edition) and in the case of London, will, if practicable, be the Financial Times (London Edition) and published 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 City of New York or London, as applicable. 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 which is made or given with the approval of the Trustee shall constitute a sufficient publication of such notice.
“
Bankruptcy Event of Default
” has the meaning specified in Section 6.01.
1
“
Board Resolution
” means one or more resolutions of the board of directors of
the Company or any authorized committee thereof, certified by the secretary or an assistant secretary to have been duly adopted and to be in full force and effect on the date of certification, and delivered to the Trustee.
“
Business Day
” means 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 or regulation to close in The City of New York, with respect to any Security the interest on which is based on the offered quotations in the interbank Eurodollar market for dollar deposits in London, or
with respect to Securities denominated in a specified currency other than United States dollars, in the principal financial center of the country of the specified currency.
“
Commission
” means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act
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 at such time.
“
Company
” means the party named as such in the first paragraph of this Indenture until a successor replaces it pursuant to
Article 5 of this Indenture and thereafter means the successor.
“
Corporate Trust Office
” means the office of the Trustee
at which the corporate trust business of the Trustee shall, at any particular time, be administered, which office is, at the date of this Indenture, located at The Bank of New York Mellon Trust Company, N.A., 10161 Centurion Parkway North,
Jacksonville, Florida 32256 Attention: Corporate Trust.
“
Currency Agreement
” means, with respect to any Person, any
foreign exchange contract, currency swap agreement or other similar agreement or arrangement designed to protect such Person or any of its Subsidiaries against fluctuations in currency values to or under which such Person or any of its Subsidiaries
is a party or a beneficiary on the date hereof or becomes a party or a beneficiary thereafter.
“
Default
” means any event
that is, or after notice or passage of time or both would be, an Event of Default.
“
Depositary
” means, with respect to
the Securities of any series issuable or issued in the form of one or more Registered Global Securities, the Person designated as Depositary by the Company pursuant to Section 2.03 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 Registered Global Securities of that series.
“
Event of Default
” means any event specified in Section 6.01, continued for the period of time, if any, and after the
giving of the notice, if any, designated in Section 6.01.
“
Exchange Act
” means the Securities Exchange Act of 1934,
as amended.
2
“
GAAP
” means generally accepted accounting principles in the U.S. as in effect
as of the date hereof applied on a basis consistent with the principles, methods, procedures and practices employed in the preparation of the Company’s audited financial statements, including, without limitation, those 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 is
approved by a significant segment of the accounting profession.
“
Holder
” or “
Securityholder
” means the
registered holder of any Security with respect to Registered Securities and the bearer of any Unregistered Security or any coupon appertaining thereto, as the case may be.
“
Indenture
” means this Indenture as originally executed and delivered or as it may be amended or supplemented from time to
time by one or more indentures supplemental to this Indenture entered into pursuant to the applicable provisions of this Indenture and shall include the forms and terms of the Securities of each series established as contemplated pursuant to
Sections 2.01 and 2.03.
“
Interest Rate Agreement
” means, with respect to any Person, any interest rate protection
agreement, interest rate future agreement, interest rate option agreement, interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedge agreement or other similar agreement or arrangement designed to
protect such Person or any of its Subsidiaries against fluctuations in interest rates to or under which such Person or any of its Subsidiaries is a party or a beneficiary on the date hereof or becomes a party or a beneficiary thereafter.
“
Lien
” means, with respect to any property, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind
in respect of such property. For purposes of this Indenture, the Company shall be deemed to own subject to a Lien any property which it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such property.
“
Officer
” means, with respect to the Company, the
chairman of the board of directors, the president or chief executive officer, any vice president, the chief financial officer, the treasurer or any assistant treasurer, or the secretary or any assistant secretary.
“
Officers’ Certificate
” means a certificate signed in the name of the Company (i) by the chairman of the board of
directors, the president or chief executive officer or a vice president and (ii) by the chief financial officer, the treasurer or any assistant treasurer, or the secretary or any assistant secretary, and delivered to the Trustee. Each such
certificate shall comply with Section 314 of the Trust Indenture Act, if applicable, and include (except as otherwise expressly provided in this Indenture) the statements provided in Section 10.04, if applicable.
“
Opinion of Counsel
” means a written opinion signed by legal counsel, who may be an employee of or counsel to the Company,
satisfactory to the Trustee. Each such opinion shall comply with Section 314 of the Trust Indenture Act, if applicable, and include the statements provided in Section 10.04, if and to the extent required thereby.
3
“
Original Issue Date
” of any Security (or portion thereof) means the earlier of
(a) the date of authentication of such Security or (b) the date of any Security (or portion thereof) for which such Security was issued (directly or indirectly) on registration of transfer, exchange or substitution.
“
Original Issue Discount Security
” means any Security that provides for an amount less than the principal amount thereof to
be due and payable upon a declaration of acceleration of the maturity thereof pursuant to Section 6.01.
“
Periodic
Offering
” means an offering of Securities of a series from time to time, the specific terms of which Securities, including, without limitation, the rate or rates of interest, if any, thereon, the stated maturity or maturities thereof and
the redemption provisions, if any, with respect thereto, are to be determined by the Company or its agents upon the issuance of such Securities.
“
Person
” means an individual, a corporation, a partnership, a limited liability company, an association, a trust or any other
entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
“
Principal
” of a Security means the principal amount of, and, unless the context indicates otherwise, includes any premium
payable on, the Security.
“
Ranking Junior to the Securities
”, when used with respect to any obligation of the Company,
means any obligation of the Company which (a) ranks junior to and not equally with or prior to the Securities in right of payment upon the happening of any event of the kind specified in the first sentence of the first paragraph of
Section 11.01, and (b) is specifically designated as ranking junior to the Securities by express provisions in the instrument creating or evidencing such obligation.
“
Ranking on a Parity with the Securities
”, when used with respect to any obligation of the Company, means any obligation of
the Company which (a) ranks equally with and not prior to the Securities in right of payment upon the happening of any event of the kind specified in the first sentence of the first paragraph of Section 11.01, and (b) is specifically
designated as ranking on a parity with the Securities by express provision in the instrument creating or evidencing such obligation. The securing of any obligations of the Company, otherwise Ranking on a Parity with the Securities or Ranking Junior
to the Securities, is not deemed to prevent such obligations from constituting obligations Ranking on a Parity with the Securities or Ranking Junior to the Securities.
“
Registered Global Security
” means a Security evidencing all or a part of a series of Registered Securities, issued to the
Depositary for such series in accordance with Section 2.02, and bearing the legend prescribed in Section 2.02.
“
Registered Security
” means any Security registered on the Security Register (as defined in Section 2.05).
“
Responsible Officer
” when used with respect to the Trustee, shall mean an 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 matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the
particular subject.
4
“
Securities
” means any of the securities, as defined in the first paragraph of
the recitals hereof, that are authenticated and delivered under this Indenture and, unless the context indicates otherwise, shall include any coupon appertaining thereto.
“
Securities Act
” means the Securities Act of 1933, as amended.
“
Senior Indebtedness
” means the following, whether now outstanding or subsequently created, assumed or incurred: (1) all
indebtedness of the Company for money borrowed, including any obligation of, or any obligation guaranteed by, the Company, for the repayment of borrowed money, whether or not evidenced by bonds, debentures, securities, notes or other written
instruments; (2) any deferred obligation of the Company for the payment of the purchase price of property or assets acquired other than in the ordinary course of business; (3) all obligations, contingent or otherwise, of the Company in
respect of any letters of credit, bankers acceptances, security purchase facilities and similar transactions; (4) all capital lease obligations of the Company; (5) all obligations of the Company in respect of interest rate swap, cap or
other agreements, interest rate future or option contracts, currency swap agreements, currency future or option contacts, commodity contracts and other similar agreements; (6) all obligations of the type referred to in clauses (1) through
(5) of other Persons for the payment of which the Company is responsible or liable as obligor, guarantor or otherwise;
provided
,
however
, that “
Senior Indebtedness
” does not include (a) the Securities issued
under this Indenture, (b) any obligation Ranking on a Parity with such Securities, or (c) any obligation Ranking Junior to such Securities.
“
Subsidiary
” means, with respect to any Person, any corporation, association or other business entity of which a majority of
the capital stock or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are at the time directly or indirectly owned by such Person.
“
Trustee
” means the party named as such in the first paragraph of this Indenture until a successor replaces it in accordance
with the provisions of Article 7 and thereafter shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any series shall
mean the Trustee with respect to Securities of that series.
“
Trust Indenture Act
” means the Trust Indenture Act of 1939,
as amended (15 U.S. Code §§ 77aaa-77bbbb), as it may be amended from time to time.
“
Unregistered Security
”
means any Security other than a Registered Security.
“
U.S. Government Obligations
” means securities that are
(i) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or (ii) obligations of 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 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
5
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 or the specific payment of interest on or principal of the U.S. Government Obligation evidenced by such depository receipt.
“
Yield to Maturity
” means, as the context may require, the yield to maturity (i) on a series of Securities or
(ii) if the Securities of a series are issuable from time to time, on a Security of such series, calculated at the time of issuance of such series in the case of clause (i) or at the time of issuance of such Security of such series in the
case of clause (ii), or, if applicable, at the most recent redetermination of interest on such series or on such Security, and calculated in accordance with the constant interest method or such other accepted financial practice as is specified in
the terms of such Security.
Section 1.02 Other Definitions
. Each of the following terms is defined in the section set forth
opposite such term:
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Term
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Section
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Authenticating Agent
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2.02
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Cash Transaction
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7.03
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Dollars
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4.02
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Judgment Currency
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10.15
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(a)
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Mandatory Sinking Fund Payment
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3.05
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Optional Sinking Fund Payment
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3.05
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Paying Agent
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2.05
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Payment Blockage Period
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11.02
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Record Date
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2.04
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Registrar
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2.05
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Required Currency
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10.15
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(a)
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Security Register
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2.05
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Self-liquidating Paper
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7.03
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Sinking Fund Payment Date
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3.05
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Tranche
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2.14
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Section 1.03 Incorporation by Reference of Trust Indenture Act
. Whenever this Indenture refers to a
provision of the Trust Indenture Act, the provision is incorporated by reference in and made a part of this Indenture. The following terms used in this Indenture that are defined by the Trust Indenture Act have the following
meanings:”
indenture securities
” means the Securities;
“
indenture security holder
” means a Holder or a
Securityholder;
6
“
indenture to be qualified
” means this Indenture;
“
indenture trustee
” or “institutional trustee” means the Trustee; and
“
obligor
” on the indenture securities means the Company or any other obligor on the Securities.
All other terms used in this Indenture that are defined by the Trust Indenture Act, defined by reference in the Trust Indenture Act to another
statute or defined by a rule of the Commission and not otherwise defined herein have the meanings assigned to them therein.
Section 1.04
Rules of Construction
. Unless the context otherwise requires:
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(a)
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an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
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(b)
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words in the singular include the plural, and words in the plural include the singular;
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(c)
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“herein,” “hereof” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision;
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(d)
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all references to Sections or Articles refer to Sections or Articles of this Indenture unless otherwise indicated; and
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(e)
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use of masculine, feminine or neuter pronouns should not be deemed a limitation, and the use of any such pronouns should be construed to include, where appropriate, the other pronouns.
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Article 2. THE SECURITIES
Section 2.01
Form and Dating
. The Securities of each series shall be substantially in such form or forms (not inconsistent with this
Indenture) as shall be established by or pursuant to one or more Board Resolutions or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have imprinted or otherwise reproduced thereon such legend or legends or endorsements, not inconsistent with the provisions of this Indenture, as may be required to comply with any law, or with any rules of any
securities exchange or usage, all as may be determined by the officers executing such Securities as evidenced by their execution of the Securities. Unless otherwise so established, Unregistered Securities shall have coupons attached.
Section 2.02
Execution and Authentication
. Two Officers shall execute the Securities and one Officer shall execute the coupons
appertaining thereto for the Company by facsimile or manual signature in the name and on behalf of the Company. The seal of the Company, if any, may be reproduced on the Securities but the failure to affix said seal shall not invalidate the due
execution of the Securities. If an Officer whose signature is on a Security or coupon appertaining thereto no longer holds that office at the time the Security is authenticated, the Security and such coupon shall nevertheless be valid.
7
The Trustee, at the expense of the Company, may appoint an authenticating agent (the
“
Authenticating Agent
”) to authenticate Securities.
The 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 Authenticating Agent.
A Security and the coupons appertaining thereto shall not be valid until the Trustee or Authenticating Agent manually signs the certificate of
authentication on the Security or on the Security to which such coupon appertains by an authorized officer. The signature shall be conclusive evidence that the Security or the Security to which the coupon appertains has been authenticated under this
Indenture.
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of
any series having attached thereto appropriate coupons, if any, executed by the Company to the Trustee for authentication together with the applicable documents referred to below in this Section, and the Trustee shall thereupon authenticate and
deliver such Securities to or upon the written order of the Company. In authenticating any Securities of a series, the Trustee shall be entitled to receive prior to the authentication of any Securities of such series, and (subject to Article 7)
shall be fully protected in relying upon, unless and until such documents have been superseded or revoked:
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(a)
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any Board Resolution and/or executed supplemental indenture referred to in Sections 2.01 and 2.03 by or pursuant to which the forms and terms of the Securities of that series were established;
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(b)
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an Officers’ Certificate setting forth the form or forms and terms of the Securities, stating that the form or forms and terms of the Securities of such series have been, or, in the case of a Periodic Offering,
will be when established in accordance with such procedures as shall be referred to therein, established in compliance with this Indenture; and
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(c)
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an Opinion of Counsel substantially to the effect that the form or forms and terms of the Securities of such series have been, or, in the case of a Periodic Offering, will be when established in accordance with such
procedures as shall be referred to therein, established in compliance with this Indenture and that the supplemental indenture, to the extent applicable, and Securities have been duly authorized and, if executed and authenticated in accordance with
the provisions of the Indenture and delivered to and duly paid for by the purchasers thereof on the date of such opinion, would be entitled to the benefits of the Indenture and would be valid and binding obligations of the Company, enforceable
against the Company in accordance with their respective terms, subject to bankruptcy, insolvency, reorganization, receivership, moratorium and other similar laws affecting creditors’ rights generally, general principles of equity, and covering
such other matters as shall be specified therein and as shall be reasonably requested by the Trustee.
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The Trustee shall not
be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
8
Notwithstanding the provisions of Sections 2.01 and 2.02, if, in connection with a Periodic
Offering, all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Board Resolution otherwise required pursuant to Section 2.01 or an Officers’ Certificate and Opinion of Counsel
otherwise required pursuant to Section 2.02 at or prior to the authentication of each such Security of such series if such documents are delivered upon the original issuance of the first Security of such series to be issued.
With respect to Securities of a series offered in a Periodic Offering, the Trustee may rely, as to the authorization by the Company of any of
such Securities, the forms and terms thereof and the legality, validity, binding effect and enforceability thereof, upon the Opinion of Counsel and the other documents delivered pursuant to Sections 2.01 and 2.02, as applicable, in connection with
the first authentication of Securities of such series.
If the Company shall establish pursuant to Section 2.03 that the Securities
of a series or a portion thereof are to be issued in the form of one or more Registered Global Securities, then the Company shall execute and the Trustee shall authenticate and deliver one or more Registered Global Securities that (i) shall
represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series issued in such form and not yet cancelled, (ii) shall be registered in the name of the Depositary for such
Registered Global Security or Securities or the nominee of such Depositary, (iii) shall be delivered by the Trustee to such Depositary or its custodian or pursuant to such Depositary’s instructions and (iv) shall bear a legend
substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depositary to the nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.”
Section 2.03
Amount Unlimited; Issuable in Series
. The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series and shall be subordinated to the Senior
Indebtedness pursuant to the provisions of Article 11 hereof. There shall be established in or pursuant to Board Resolution or one or more indentures supplemental hereto, prior to the initial issuance of Securities of any series, subject to the last
sentence of this Section 2.03,
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(a)
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the designation of the Securities of the series, which shall distinguish the Securities of the series from the Securities of all other series;
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(b)
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any limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this Indenture and any limitation on the ability of the Company to increase such aggregate
principal amount after the initial issuance of the Securities of that series (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, or upon redemption of, other Securities of the
series pursuant hereto);
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(c)
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the date or dates on which the principal of the Securities of the series is payable (which date or dates may be fixed or extendible);
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(d)
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the rate or rates (which may be fixed or variable) per annum at which the Securities of the series shall bear interest, if any, the date or dates from which such interest shall accrue, on which such interest shall be
payable and (in the case of Registered Securities) on which a record shall be taken for the determination of Holders to whom interest is payable and/or the method by which such rate or rates or date or dates shall be determined;
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(e)
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if other than as provided in Section 4.02, the place or places where the principal of and any interest on Securities of the series shall be payable, any Registered Securities of the series may be surrendered for
exchange, notices, demands to or upon the Company in respect of the Securities of the series and this Indenture may be served and notice to Holders may be published;
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(f)
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the right, if any, of the Company to redeem Securities of the series, in whole or in part, at its option and the period or periods within which, the price or prices at which and any terms and conditions upon which
Securities of the series may be so redeemed, pursuant to any sinking fund or otherwise;
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(g)
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the obligation, if any, of the Company to redeem, purchase or repay Securities of the series pursuant to any mandatory redemption, sinking fund or analogous provisions or at the option of a Holder thereof and the price
or prices at which and the period or periods within which and any of the terms and conditions upon which Securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
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(h)
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if other than denominations of $1,000 and any integral multiple thereof, the denominations in which Securities of the series shall be issuable;
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(i)
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if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the maturity thereof;
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(j)
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if other than the coin or currency in which the Securities of the series are denominated, the coin or currency in which payment of the principal of or interest on the Securities of the series shall be payable or if the
amount of payments of principal of and/or interest on the Securities of the series may be determined with reference to an index based on a coin or currency other than that in which the Securities of the series are denominated, the manner in which
such amounts shall be determined;
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(k)
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if other than the currency of the United States of America, the currency or currencies, including composite currencies, in which payment of the Principal of and interest on the Securities of the series shall be payable,
and the manner in which any such currencies shall be valued against other currencies in which any other Securities shall be payable;
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(l)
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whether the Securities of the series or any portion thereof will be issuable as Registered Securities (and if so, whether such Securities will be
issuable as Registered Global
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Securities) or Unregistered Securities (with or without coupons) (and if so, whether such Securities will be issued in temporary or permanent global form), or any combination of the foregoing,
any restrictions applicable to the offer, sale or delivery of Unregistered Securities or the payment of interest thereon and, if other than as provided herein, the terms upon which Unregistered Securities of any series may be exchanged for
Registered Securities of such series and vice versa;
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(m)
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whether and under what circumstances the Company will pay additional amounts on the Securities of the series held by a person who is not a U.S. person in respect of any tax, assessment or governmental charge withheld or
deducted and, if so, whether the Company will have the option to redeem such Securities rather than pay such additional amounts;
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(n)
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if the Securities of the series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary Security of such series) only upon receipt of certain certificates or other documents or
satisfaction of other conditions, the form and terms of such certificates, documents or conditions;
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(o)
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any trustees, depositaries, authenticating or paying agents, transfer agents or the registrar or any other agents with respect to the Securities of the series;
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(p)
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provisions, if any, for the defeasance of the Securities of the series (including provisions permitting defeasance of less than all Securities of the series), which provisions may be in addition to, in substitution for,
or in modification of (or any combination of the foregoing) the provisions of Article 8;
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(q)
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if the Securities of the series are issuable in whole or in part as one or more Registered Global Securities or Unregistered Securities in global form, the identity of the Depositary or common Depositary for such
Registered Global Security or Securities or Unregistered Securities in global form;
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(r)
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any other Events of Default or covenants with respect to the Securities of the series; and
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(s)
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any other terms of the Securities of the series (which terms shall not be inconsistent with the provisions of this Indenture unless otherwise agreed by the Company and the Trustee).
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All Securities of any one series and coupons, if any, appertaining thereto shall be substantially identical, except in the case of Registered
Securities as to date and denomination, except in the case of any Periodic Offering and except as may otherwise be provided by or pursuant to the Board Resolution referred to above or as set forth in any such indenture supplemental hereto. 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 such Board Resolution or in any such indenture supplemental hereto
and any forms and terms of Securities to be issued from time to time may be completed and established from time to time prior to the issuance thereof by procedures described in such Board Resolution or supplemental indenture.
11
Unless otherwise expressly provided with respect to a series of Securities, the aggregate
principal amount of a series of Securities may be increased and additional Securities of such series may be issued up to the maximum aggregate principal amount authorized with respect to such series as increased.
Section 2.04
Denomination and Date of Securities; Payments of Interest
. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as contemplated by Section 2.03 or, if not so established with respect to Securities of any series, in denominations of $1,000 and any integral multiple thereof. The Securities
of each series shall be numbered, lettered or otherwise distinguished in such manner or in accordance with such plan as the Officers of the Company executing the same may determine, as evidenced by their execution thereof.
Unless otherwise specified with respect to a series of Securities, each Security shall be dated the date of its authentication. The Securities
of each series shall bear interest, if any, from the date, and such interest and shall be payable on the dates, established as contemplated by Section 2.03.
The person in whose name any Registered Security of any series is registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series shall be entitled to receive the interest, if any, payable on such interest payment date notwithstanding any transfer or exchange of such Registered Security subsequent to
the record date and prior to such interest payment date, except if and to the extent the Company shall default in the payment of the interest due on such interest payment date for such series, in which case the provisions of Section 2.13 shall
apply. The term “record date” as used with respect to any interest payment date (except a date for payment of defaulted interest) for the Securities of any series shall mean the date specified as such in the terms of the Registered
Securities of such series established as contemplated by Section 2.03, or, if no such date is so established, the fifteenth day next preceding such interest payment date, whether or not such record date is a Business Day.
Section 2.05
Registrar and Paying Agent; Agents Generally
. The Company shall maintain an office or agency where Securities may be
presented for registration, registration of transfer or for exchange (the “Registrar”) and an office or agency where Securities may be presented for payment (the “Paying Agent”), which shall be in the Borough of Manhattan, The
City of New York or in Chicago, Illinois. The Company shall cause the Registrar to keep a register of the Registered Securities and of their registration, transfer and exchange (the “Security Register”). The Company may have one or more
additional Paying Agents or transfer agents with respect to any series.
The Company shall enter into an appropriate agency agreement with
any Agent not a party to this Indenture. The agreement shall implement the provisions of this Indenture and the Trust Indenture Act that relate to such Agent. The Company shall give prompt written notice to the Trustee of the name and address of any
Agent and any change in the name or address of an Agent. If the Company fails to maintain a Registrar or Paying Agent, the Trustee shall act as such. The Company may remove any Agent upon written notice to such Agent and the Trustee;
provided
that no such removal shall become effective until (i) the acceptance of an appointment
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by a successor Agent to such Agent as evidenced by an appropriate agency agreement entered into by the Company and such successor Agent and delivered to the Trustee or (ii) notification to
the Trustee that the Trustee shall serve as such Agent until the appointment of a successor Agent in accordance with clause (i) of this proviso. The Company or any affiliate of the Company may act as Paying Agent or Registrar;
provided
that neither the Company nor an affiliate of the Company shall act as Paying Agent in connection with the defeasance of the Securities or the discharge of this Indenture under Article 8.
The Company initially appoints the Trustee as Registrar, Paying Agent and Authenticating Agent. If, at any time, the Trustee is not the
Registrar, the Registrar shall make available to the Trustee ten days prior to each interest payment date and at such other times as the Trustee may reasonably request the names and addresses of the Holders as they appear in the Security Register.
Section 2.06
Paying Agent to Hold Money in Trust
. Not later than 10:00 a.m. New York City time on each due date or, in the case of
Unregistered Securities, 10:00 a.m. New York City time on the Business Day prior to the due date, of any Principal or interest on any Securities, the Company shall deposit with the Paying Agent money in immediately available funds sufficient to pay
such Principal or interest. The Company shall require each Paying Agent other than the Trustee to agree in writing that such Paying Agent shall hold in trust for the benefit of the Holders of such Securities or the Trustee all money held by the
Paying Agent for the payment of Principal of and interest on such Securities and shall promptly notify the Trustee of any default by the Company in making any such payment. The Company at any time may require a Paying Agent to pay all money held by
it to the Trustee and account for any funds disbursed, and the Trustee may at any time during the continuance of any payment default, upon written request to a Paying Agent, require such Paying Agent to pay all money held by it to the Trustee and to
account for any funds disbursed. Upon doing so, the Paying Agent shall have no further liability for the money so paid over to the Trustee. If the Company or any affiliate of the Company acts as Paying Agent, it will, on or before each due date of
any Principal of or interest on any Securities, segregate and hold in a separate trust fund for the benefit of the Holders thereof a sum of money sufficient to pay such Principal or interest so becoming due until such sum of money shall be paid to
such Holders or otherwise disposed of as provided in this Indenture, and will promptly notify the Trustee in writing of its action or failure to act as required by this Section.
Section 2.07
Transfer and Exchange
. Unregistered Securities (except for any temporary global Unregistered Securities) and coupons
(except for coupons attached to any temporary global Unregistered Securities) shall be transferable by delivery.
At the option of the
Holder thereof, Registered Securities of any series (other than a Registered Global Security, except as set forth below) may be exchanged for a Registered Security or Registered Securities of such series and tenor having authorized denominations and
an equal aggregate principal amount, upon surrender of such Registered Securities to be exchanged at the agency of the Company that shall be maintained for such purpose in accordance with Section 2.05 and upon payment, if the Company shall so
require, of the charges hereinafter provided. If the Securities of any series are issued in both registered and unregistered form, except as otherwise established pursuant to Section 2.03, at the option of the Holder thereof,
13
Unregistered Securities of any series may be exchanged for Registered Securities of such series and tenor having authorized denominations and an equal aggregate principal amount, upon surrender
of such Unregistered Securities to be exchanged at the agency of the Company that shall be maintained for such purpose in accordance with Section 4.02, with, in the case of Unregistered Securities that have coupons attached, all unmatured
coupons and all matured coupons in default thereto appertaining, and upon payment, if the Company shall so require, of the charges hereinafter provided. At the option of the Holder thereof, if Unregistered Securities of any series, maturity date,
interest rate and original issue date are issued in more than one authorized denomination, except as otherwise established pursuant to Section 2.03, such Unregistered Securities may be exchanged for Unregistered Securities of such series and
tenor having authorized denominations and an equal aggregate principal amount, upon surrender of such Unregistered Securities to be exchanged at the agency of the Company that shall be maintained for such purpose in accordance with
Section 4.02, with, in the case of Unregistered Securities that have coupons attached, all unmatured coupons and all matured coupons in default thereto appertaining, and upon payment, if the Company shall so require, of the charges hereinafter
provided. Registered Securities of any series may not be exchanged for Unregistered Securities of such series. 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.
Upon surrender for registration of transfer of any Registered
Security of a series at the agency of the Company that shall be maintained for that purpose in accordance with Section 2.05 and upon payment, if the Company shall so require, of the charges hereinafter provided, the Company shall execute, and
the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Registered Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount.
All Registered Securities presented for registration of transfer, exchange, redemption or payment shall be duly endorsed by, or be accompanied
by a written instrument or instruments of transfer in form satisfactory to the Company and the Trustee duly executed by, the holder or his attorney duly authorized in writing.
The Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any
exchange or registration of transfer of Securities. No service charge shall be made for any such transaction.
Notwithstanding any other
provision of this Section 2.07, unless and until it is exchanged in whole or in part for Securities in definitive registered form, a Registered Global Security representing all or a portion of the Securities of a series may not be transferred
except as a whole by the Depositary for such series to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by such Depositary or any such nominee to a successor Depositary for
such series or a nominee of such successor Depositary.
If at any time the Depositary for any Registered Global Securities of any series
notifies the Company that it is unwilling or unable to continue as Depositary for such Registered Global Securities or if at any time the Depositary for such Registered Global Securities shall no longer
14
be eligible under applicable law, the Company shall appoint a successor Depositary eligible under applicable law with respect to such Registered Global Securities. If a successor Depositary
eligible under applicable law for such Registered Global Securities is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company will execute, and the Trustee, upon receipt
of the Company’s order for the authentication and delivery of definitive Registered Securities of such series and tenor, will authenticate and deliver Registered Securities of such series and tenor, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of such Registered Global Securities, in exchange for such Registered Global Securities.
The Company may at any time and in its sole discretion and subject to the procedures of the Depositary determine that any Registered Global
Securities of any series shall no longer be maintained in global form. In such event the Company will execute, and the Trustee, upon receipt of the Company’s order for the authentication and delivery of definitive Registered Securities of such
series and tenor, will authenticate and deliver, Registered Securities of such series and tenor in any authorized denominations, in an aggregate principal amount equal to the principal amount of such Registered Global Securities, in exchange for
such Registered Global Securities.
Any time the Registered Securities of any series are not in the form of Registered Global Securities
pursuant to the preceding two paragraphs, the Company agrees to supply the Trustee with a reasonable supply of certificated Registered Securities without the legend required by Section 2.02 and the Trustee agrees to hold such Registered
Securities in safekeeping until authenticated and delivered pursuant to the terms of this Indenture.
If established by the Company
pursuant to Section 2.03 with respect to any Registered Global Security, the Depositary for such Registered Global Security may surrender such Registered Global Security in exchange in whole or in part for Registered Securities of the same
series and tenor in definitive registered form on such terms as are acceptable to the Company and such Depositary. Thereupon, the Company shall execute, and the Trustee shall authenticate and deliver, without service charge,
(a) to the Person specified by such Depositary new Registered Securities of the same series and tenor, of any authorized denominations as
requested by such Person, in an aggregate principal amount equal to and in exchange for such Person’s beneficial interest in the Registered Global Security; and
(b) to such Depositary a new Registered Global Security in a denomination equal to the difference, if any, between the principal amount of the
surrendered Registered Global Security and the aggregate principal amount of Registered Securities authenticated and delivered pursuant to clause (a) above.
Registered Securities issued in exchange for a Registered Global Security pursuant to this Section 2.07 shall be registered in such names
and in such authorized denominations as the Depositary for such Registered Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee or an agent of the Company or the Trustee. The
Trustee or such agent shall deliver such Securities to or as directed by the Persons in whose names such Securities are so registered.
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All Securities issued upon any transfer or exchange of Securities shall be 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.
Notwithstanding anything herein or in the forms or terms of any Securities to the contrary, none of the Company, the Trustee or any agent of
the Company or the Trustee shall be required to exchange any Unregistered Security for a Registered Security if such exchange would result in adverse Federal income tax consequences to the Company (such as, for example, the inability of the Company
to deduct from its income, as computed for Federal income tax purposes, the interest payable on the Unregistered Securities) under then applicable United States Federal income tax laws. The Trustee and any such agent shall be entitled to rely on an
Officers’ Certificate or an Opinion of Counsel in determining such result.
The Registrar shall not be required (i) to issue,
authenticate, register the transfer of or exchange Securities of any series for a period of 15 days before a selection of such Securities to be redeemed or (ii) to register the transfer of or exchange any Security selected for redemption in
whole or in part.
Section 2.08
Replacement Securities
. If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver, in exchange for such mutilated Security or in exchange for the Security to which a mutilated coupon appertains, a new
Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding, with coupons corresponding to the coupons, if any, appertaining to such mutilated Security or to the Security to which such
mutilated coupon appertains.
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the
destruction, loss or theft of any Security or coupon and (ii) such security or indemnity as may be required by them to save each of them and any agent of any of them harmless, then, in the absence of notice to the Company or the Trustee that
such Security or coupon has been acquired by a protected purchaser, the Company shall execute and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not destroyed, lost or stolen), a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to such destroyed, lost or stolen Security or to the Security to which such destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security or coupon (without surrender thereof except in the case of a mutilated Security or coupon) if the applicant for such payment shall furnish to the Company and the Trustee such
security or indemnity as may be required by them to save each of them and any agent of any of them harmless, and in the case of destruction, loss or theft, evidence satisfactory
16
to the Company and the Trustee and any agent of them of the destruction, loss or theft of such Security and the ownership thereof;
provided, however,
that the Principal of and any interest
on Unregistered Securities shall, except as otherwise provided in Section 4.02, be payable only at an office or agency located outside the United States.
Upon the issuance of any new Security under this Section, the Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with its coupons, if any, issued pursuant to this Section in lieu of any destroyed, lost or stolen Security
or in exchange for any mutilated Security, or in exchange for a Security to which a mutilated, destroyed, lost or stolen coupon appertains, shall constitute an original additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Security and its coupons, if any, or the mutilated, destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and any such new Security and coupons, if any, shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) any other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities or coupons.
Section 2.09
Outstanding Securities
.
Securities outstanding at any time are all Securities that have been authenticated by the Trustee except for those cancelled by it, those delivered to it for cancellation, those described in this Section as not outstanding and those that have been
defeased pursuant to Section 8.05.
If a Security is replaced pursuant to Section 2.08, it ceases to be outstanding unless and
until the Trustee and the Company receive proof satisfactory to them that the replaced Security is held by a protected purchaser.
If the
Paying Agent (other than the Company or an affiliate of the Company) holds on the maturity date or any redemption date or date for repurchase of the Securities money sufficient to pay Securities payable or to be redeemed or repurchased on that date,
then on and after that date such Securities cease to be outstanding and interest on them shall cease to accrue.
A Security does not cease
to be outstanding because the Company or one of its affiliates holds such Security,
provided, however
, that, in determining whether the Holders of the requisite principal amount of the outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned by the Company or any affiliate of the Company shall be disregarded and deemed not to be outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities as to which a Responsible Officer of the Trustee has received written notice to be so owned shall be so disregarded. Any Securities so
owned which are pledged by the Company, or by any affiliate of the Company, as security for loans or other obligations, otherwise than to another such affiliate of the Company,
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shall be deemed to be outstanding, if the pledgee is entitled pursuant to the terms of its pledge agreement and is free to exercise in its or his discretion the right to vote such securities,
uncontrolled by the Company or by any such affiliate.
Section 2.10
Temporary Securities
. Until definitive Securities of any series
are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary Securities of such series. Temporary Securities of any series shall be substantially in the form of definitive Securities of such series but may have
insertions, substitutions, omissions and other variations determined to be appropriate by the Officers executing the temporary Securities, as evidenced by their execution of such temporary Securities. 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 of any series, the temporary Securities of such series shall be exchangeable for definitive
Securities of such series and tenor upon surrender of such temporary Securities at the office or agency of the Company designated for such purpose pursuant to Section 4.02, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of such series and tenor and authorized denominations.
Until so exchanged, the temporary Securities of any series shall be entitled to the same benefits under this Indenture as definitive Securities of such series.
Section 2.11 Cancellation
. The Company at any time may deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold. The Registrar, any
transfer agent and the Paying Agent shall forward to the Trustee any Securities surrendered to them for transfer, exchange or payment. The Trustee shall cancel and dispose of in accordance with its customary procedures all Securities surrendered for
transfer, exchange, payment or cancellation and shall deliver a certificate of disposition to the Company. The Company may not issue new Securities to replace Securities it has paid in full or delivered to the Trustee for cancellation.
Section 2.12 CUSIP Numbers
. The Company in issuing the Securities may use “CUSIP” and “ISIN” numbers (if then
generally in use), and the Trustee shall use CUSIP numbers or ISIN numbers, as the case may be, in notices of redemption or exchange as a convenience to Holders and no representation shall be made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of redemption or exchange.
Section 2.13 Defaulted Interest
. If the Company
defaults in a payment of interest on the Registered Securities, it shall pay, or shall deposit with the Paying Agent money in immediately available funds sufficient to pay, the defaulted interest plus (to the extent lawful) any interest payable on
the defaulted interest (as may be specified in the terms thereof, established pursuant to Section 2.03) to the Persons who are Holders on a subsequent special record date, which shall mean the 15th day next preceding the date fixed by the
Company for the payment of defaulted interest, whether or not such day is a Business Day. At least 15 days before such special record date, the Company shall mail to each Holder of such Registered Securities and to the Trustee a notice that states
the special record date, the payment date and the amount of defaulted interest to be paid.
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Section 2.14 Series May Include Tranches
. A series of Securities may include one or more
tranches (each a “
tranche
”) of Securities, including Securities issued in a Periodic Offering. The Securities of different tranches may have one or more different terms, including authentication dates and public offering prices, but
all the Securities within each such tranche shall have identical terms, including authentication date and public offering price. Notwithstanding any other provision of this Indenture, with respect to Sections 2.02 (other than the fourth, sixth and
seventh paragraphs thereof) through 2.04, 2.07, 2.08, 2.10, 3.01 through 3.05, 4.02, 6.01 through 6.14, 8.01 through 8.07, 9.02 and Section 10.07, if any series of Securities includes more than one tranche, all provisions of such sections
applicable to any series of Securities shall be deemed equally applicable to each tranche of any series of Securities in the same manner as though originally designated a series unless otherwise provided with respect to such series or tranche
pursuant to Section 2.03. In particular, and without limiting the scope of the next preceding sentence, any of the provisions of such sections which provide for or permit action to be taken with respect to a series of Securities shall also be
deemed to provide for and permit such action to be taken instead only with respect to Securities of one or more tranches within that series (and such provisions shall be deemed satisfied thereby), even if no comparable action is taken with respect
to Securities in the remaining tranches of that series.
Article 3. REDEMPTION
Section 3.01 Applicability of Article
. The provisions of this Article shall be applicable to the Securities of any series which are
redeemable before their maturity or to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 2.03 for Securities of such series.
Section 3.02 Notice of Redemption; Partial Redemptions
. Notice of redemption to the Holders of Registered Securities of any series to
be redeemed as a whole or in part at the option of the Company shall be given by mailing notice of such redemption by first class mail, postage prepaid, at least 30 days and not more than 60 days prior to the date fixed for redemption to such
Holders of Registered Securities of such series at their last addresses as they shall appear upon the Security Registry. Notice of redemption to the Holders of Unregistered Securities of any series to be redeemed as a whole or in part who have filed
their names and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act, shall be given by mailing notice of such redemption, by first class mail, postage prepaid, at least 30 days and not more than 60 days prior to
the date fixed for redemption, to such Holders at such addresses as were so furnished to the Trustee (and, in the case of any such notice given by the Company, the Trustee shall make such information available to the Company for such purpose).
Notice of redemption to all other Holders of Unregistered Securities of any series to be redeemed as a whole or in part shall be published in an Authorized Newspaper in The City of New York or with respect to any Security the interest on which is
based on the offered quotations in the interbank Eurodollar market for dollar deposits in an Authorized Newspaper in London, in each case, once in each of three successive calendar weeks, the first publication to be not less than 30 days nor more
than 60 days prior to the date fixed for redemption. Any notice which is mailed or published in the manner herein provided shall be conclusively presumed to have been duly given, whether or not
19
the Holder receives the notice. Failure to give notice by mail, or any defect in the notice to the Holder of any Security of a series designated for redemption as a whole or in part shall not
affect the validity of the proceedings for the redemption of any other Security of such series.
The notice of redemption to each such
Holder shall specify the principal amount of each Security of such series held by such Holder to be redeemed, the CUSIP numbers of the Securities to be redeemed, the date fixed for redemption, the redemption price, or if not then ascertainable, the
manner of calculation thereof, the place or places of payment, that payment will be made upon presentation and surrender of such Securities and, in the case of Securities with coupons attached thereto, of all coupons appertaining thereto maturing
after the date fixed for redemption, that such redemption is pursuant to the mandatory or optional sinking fund, or both, if such be the case, that interest accrued to the date fixed for redemption will be paid as specified in such notice and that
on and after said date interest thereon or on the portions thereof to be redeemed will cease to accrue. In case any Security of a series is to be redeemed in part only, the notice of redemption shall state the portion of the principal amount thereof
to be redeemed and shall state that on and after the date fixed for redemption, upon surrender of such Security, a new Security or Securities of such series and tenor in principal amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at the option of the Company shall be given by the Company or, at the
Company’s request, by the Trustee in the name and at the expense of the Company.
On or before 10:00 a.m. New York City time on the
redemption date or, in the case of Unregistered Securities, on or before 10:00 a.m. New York City time on the Business Day prior to the redemption date specified in the notice of redemption given as provided in this Section, the Company will deposit
with the Trustee or with one or more Paying Agents (or, if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 2.06) an amount of money sufficient to redeem on the redemption date all the
Securities of such series so called for redemption at the appropriate redemption price, together with accrued interest to the date fixed for redemption. 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 deliver to the Trustee, prior to the giving of any notice of redemption to Holders pursuant to this Section, an Officers’ Certificate evidencing compliance with such restriction or condition.
If less than all the Securities of a series are to be redeemed, the Trustee shall select the Securities to be redeemed by lot;
provided
that if any Securities are in global form, interests in such global Securities will be selected for redemption by the applicable Depository in accordance with its standard procedures therefor. The Company shall notify the Trustee within five days
prior to the delivery of any notice of redemption hereunder (or such lesser period as the Trustee shall agree) if such proposed redemption shall be for all or less than all of the Securities of such series to be redeemed. Securities may be redeemed
in part in principal amounts equal to authorized denominations for Securities of such series. The Trustee shall promptly notify the Company in writing of the Securities of such series selected for redemption and, in the case of any Securities of
such series selected for partial redemption, the principal amount thereof to be
20
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 amount of such Security which has been or is to be redeemed.
Section 3.03
Payment Of Securities Called For Redemption
. If notice of redemption has been given as above provided, the Securities or portions of Securities specified in such notice shall become due and payable on the date and at the place stated in such
notice at the applicable redemption price, together with interest accrued to the date fixed for redemption, and on and after such date (unless the Company shall default in the payment of such Securities at the redemption price, together with
interest accrued to such date) interest on the Securities or portions of Securities so called for redemption shall cease to accrue, and the unmatured coupons, if any, appertaining thereto shall be void and, except as provided in Sections 7.12 and
8.02, such Securities shall cease from and after the date fixed for redemption to be entitled to any benefit under this Indenture, and the Holders thereof shall have no right in respect of such Securities except the right to receive the redemption
price thereof and unpaid interest to the date fixed for redemption. On presentation and surrender of such Securities at a place of payment specified in said notice, together with all coupons, if any, appertaining thereto maturing after the date
fixed for redemption, said Securities or the specified portions thereof shall be paid and redeemed by the Company at the applicable redemption price, together with interest accrued thereon to the date fixed for redemption; provided that payment of
interest becoming due on or prior to the date fixed for redemption shall be payable in the case of Securities with coupons attached thereto, to the Holders of the coupons for such interest upon surrender thereof, and in the case of Registered
Securities, to the Holders of such Registered Securities registered as such on the relevant record date subject to the terms and provisions of Sections 2.04 and 2.13 hereof.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of interest or Yield to Maturity (in the case of an Original Issue Discount Security) borne by such Security.
If any Security with coupons attached thereto is surrendered for redemption and is not accompanied by all appurtenant coupons maturing after
the date fixed for redemption, the surrender of such missing coupon or coupons may be waived by the Company and the Trustee, if there be furnished to each of them such security or indemnity as they may require to save each of them harmless.
Upon presentation of any Security of any series redeemed in part only, the Company shall execute and the Trustee shall authenticate and
deliver to or on the order of the Holder thereof, at the expense of the Company, a new Security or Securities of such series and tenor (with any unmatured coupons attached), of authorized denominations, in principal amount equal to the unredeemed
portion of the Security so presented.
S
ection 3.04 Exclusion of Certain Securities from Eligibility for Selection for Redemption
.
Securities shall be excluded from eligibility for selection for redemption if they are identified by registration and certificate number in a written statement signed by an authorized officer of the Company and delivered to the Trustee at least 40
days prior to the last date on
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which notice of redemption may be given as being owned of record and beneficially by, and not pledged or hypothecated by, either (a) the Company or (b) an entity specifically identified
in such written statement as directly or indirectly controlling or controlled by or under direct or indirect common control with the Company.
Section 3.05 Mandatory and Optional Sinking Funds
. The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a “
mandatory sinking fund payment
”, and any payment in excess of such minimum amount provided for by the terms of the Securities of any series is herein referred to as an
“
optional sinking fund payment
”. The date on which a sinking fund payment is to be made is herein referred to as the “
sinking fund payment date
”.
In lieu of making all or any part of any mandatory sinking fund payment with respect to any series of Securities in cash, the Company may at
its option (a) deliver to the Trustee Securities of such series theretofore purchased or otherwise acquired (except through a mandatory sinking fund payment) by the Company or receive credit for Securities of such series (not previously so
credited) theretofore purchased or otherwise acquired (except as aforesaid) by the Company and delivered to the Trustee for cancellation pursuant to Section 2.11, (b) receive credit for optional sinking fund payments (not previously so
credited) made pursuant to this Section, or (c) receive credit for Securities of such series (not previously so credited) redeemed by the Company at the option of the Company pursuant to the terms of such Securities or through any optional
sinking fund payment. Securities so delivered or credited shall be received or credited by the Trustee at the sinking fund redemption price specified in such Securities.
On or before the sixtieth day next preceding each sinking fund payment date for any series, or such shorter period as shall be acceptable to
the Trustee, the Company will deliver to the Trustee an Officers’ Certificate (a) specifying the portion of the mandatory sinking fund payment to be satisfied by payment of cash and the portion to be satisfied by credit of specified
Securities of such series and the basis for such credit, (b) stating that none of the specified Securities of such series has theretofore been so credited, (c) stating that no defaults in the payment of interest or Events of Default with
respect to such series have occurred (which have not been waived or cured) and are continuing and (d) stating whether or not the Company intends to exercise its right to make an optional sinking fund payment with respect to such series and, if
so, specifying the amount of such optional sinking fund payment which the Company intends to pay on or before the next succeeding sinking fund payment date. Any Securities of such series to be credited and required to be delivered to the Trustee in
order for the Company to be entitled to credit therefor as aforesaid which have not theretofore been delivered to the Trustee shall be delivered for cancellation pursuant to Section 2.11 to the Trustee with such Officers’ Certificate (or
reasonably promptly thereafter if acceptable to the Trustee). Such Officers’ Certificate shall be irrevocable and upon its receipt by the Trustee the Company shall become unconditionally obligated to make all the cash payments or delivery of
Securities therein referred to, if any, on or before the next succeeding sinking fund payment date. Failure of the Company, on or before any such sixtieth day, to deliver such Officer’s Certificate and Securities specified in this paragraph, if
any, shall not constitute a default but shall constitute, on and as of such date, the irrevocable election of the Company (i) that the mandatory sinking fund payment for such series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Securities of such series in respect thereof and (ii) that the Company will make no optional sinking fund payment with respect to such series as provided in this Section.
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If the sinking fund payment or payments (mandatory or optional or both) to be made in cash on the
next succeeding sinking fund payment date plus any unused balance of any preceding sinking fund payments made in cash shall exceed $50,000 (or a lesser sum if the Company shall so request with respect to the Securities of any series), such cash
shall be applied on the next succeeding sinking fund payment date to the redemption of Securities of such series at the sinking fund redemption price thereof together with accrued interest thereon to the date fixed for redemption. If such amount
shall be $50,000 (or such lesser sum) or less and the Company makes no such request then it shall be carried over until a sum in excess of $50,000 (or such lesser sum) is available. The Trustee shall select, in the manner provided in
Section 3.02, for redemption on such sinking fund payment date a sufficient principal amount of Securities of such series to absorb said cash, as nearly as may be, and shall (if requested in writing by the Company) inform the Company of the
serial numbers of the Securities of such series (or portions thereof) so selected. Securities shall be excluded from eligibility for redemption under this Section if they are identified by registration and certificate number in an Officers’
Certificate delivered to the Trustee at least 60 days prior to the sinking fund payment date as being owned of record and beneficially by, and not pledged or hypothecated by either (a) the Company or (b) an entity specifically identified
in such Officers’ Certificate as directly or indirectly controlling or controlled by or under direct or indirect common control with the Company. The Trustee, in the name and at the expense of the Company (or the Company, if it shall so request
the Trustee in writing) shall cause notice of redemption of the Securities of such series to be given in substantially the manner provided in Section 3.02 (and with the effect provided in Section 3.03) for the redemption of Securities of
such series in part at the option of the Company. The amount of any sinking fund payments not so applied or allocated to the redemption of Securities of such series shall be added to the next cash sinking fund payment for such series and, together
with such payment, shall be applied in accordance with the provisions of this Section. Any and all sinking fund moneys held on the stated maturity date of the Securities of any particular series (or earlier, if such maturity is accelerated), which
are not held for the payment or redemption of particular Securities of such series shall be applied, together with other moneys, if necessary, sufficient for the purpose, to the payment of the Principal of, and interest on, the Securities of such
series at maturity.
On or before 10:00 a.m. New York City time on each sinking fund payment date or, in the case of Unregistered
Securities, 10:00 a.m. New York City time on the Business Day prior to the sinking fund payment date, the Company shall pay to the Trustee in cash or shall otherwise provide for the payment of all interest accrued to the date fixed for redemption on
Securities to be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any
Securities of a series with sinking fund moneys or mail any notice of redemption of Securities of such series by operation of the sinking fund during the continuance of a Default in payment of interest on such Securities or of any Event of Default
except that, where the mailing of notice of redemption of any Securities shall theretofore have been made, the Trustee shall redeem or cause to be redeemed such Securities, provided that it shall have received from the Company a sum sufficient for
such redemption. Except as aforesaid, any moneys in the sinking fund for such series at the time when
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any such Default or Event of Default shall occur, and any moneys thereafter paid into the sinking fund, shall, during the continuance of such Default or Event of Default, be deemed to have been
collected under Article 6 and held for the payment of all such Securities. In case such Event of Default shall have been waived as provided in Section 6.07(b) or the Default cured on or before the sixtieth day preceding the sinking fund payment
date in any year, such moneys shall thereafter be applied on the next succeeding sinking fund payment date in accordance with this Section to the redemption of such Securities.
Article 4. COVENANTS
Section
4.01 Payment of Securities
. The Company shall pay the Principal of and interest on the Securities on the dates and in the manner provided in the Securities and this Indenture. The interest on Securities with coupons attached (together with any
additional amounts payable pursuant to the terms of such Securities) shall be payable only upon presentation and surrender of the several coupons for such interest installments as are evidenced thereby as they severally mature. The interest on any
temporary Unregistered Securities (together with any additional amounts payable pursuant to the terms of such Securities) shall be paid, as to the installments of interest evidenced by coupons attached thereto, if any, only upon presentation and
surrender thereof, and, as to the other installments of interest, if any, only upon presentation of such Unregistered Securities for notation thereon of the payment of such interest. The interest on Registered Securities (together with any
additional amounts payable pursuant to the terms of such Securities) shall be payable only to the Holders thereof (subject to Section 2.04) and at the option of the Company may be paid by mailing checks for such interest payable to or upon the
written order of such Holders at their last addresses as they appear on the Security Register of the Company.
Notwithstanding any
provisions of this Indenture and the Securities of any series to the contrary, if the Company and a Holder of any Registered Security so agree, payments of interest on, and any portion of the Principal of, such Holder’s Registered Security
(other than interest payable at maturity or on any redemption or repayment date or the final payment of Principal on such Security) shall be made by the Paying Agent, upon receipt from the Company of immediately available funds by 11:00 A.M., New
York City time (or such other time as may be agreed to between the Company and the Paying Agent), directly to the Holder of such Security (by Federal funds wire transfer or otherwise) if the Holder has delivered written instructions to the Trustee
15 days prior to such payment date requesting that such payment will be so made and designating the bank account to which such payments shall be so made and in the case of payments of Principal, surrenders the same to the Trustee in exchange for a
Security or Securities aggregating the same principal amount as the unredeemed principal amount of the Securities surrendered. The Trustee shall be entitled to rely on the last instruction delivered by the Holder pursuant to this Section 4.01
unless a new instruction is delivered 15 days prior to a payment date. The Company will indemnify and hold each of the Trustee and any Paying Agent harmless against any loss, liability or expense (including attorneys’ fees) resulting from any
act or omission to act on the part of the Company or any such Holder in connection with any such agreement or from making any payment in accordance with any such agreement.
The Company shall pay interest on overdue Principal, and interest on overdue installments of interest, to the extent lawful, at the rate per
annum specified in the Securities.
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Section 4.02 Maintenance of Office or Agency.
The Company will maintain in the Borough of
Manhattan, The City of New York, or Columbus, Georgia an office or agency where Securities may be surrendered for registration of transfer or exchange or for presentation for payment and where notices and demands to or upon the Company in respect of
the Securities and this Indenture may be served. The Company hereby initially designates the Corporate Trust Office of the Trustee, located in New York, New York, as such office or agency of the Company. The Company will give prompt written notice
to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the address of the Trustee set forth in Section 10.02.
The
Company will maintain one or more agencies in a city or cities located outside the United States (including any city in which such an agency is required to be maintained under the rules of any stock exchange on which the Securities of any series are
listed) where the Unregistered Securities, if any, of each series and coupons, if any, appertaining thereto may be presented for payment. No payment on any Unregistered Security or coupon will be made upon presentation of such Unregistered Security
or coupon at an agency of the Company within the United States nor will any payment be made by transfer to an account in, or by mail to an address in, the United States unless, pursuant to applicable United States laws and regulations then in
effect, such payment can be made without adverse tax consequences to the Company. Notwithstanding the foregoing, if full payment in United States Dollars (“
Dollars
”) at each agency maintained by the Company outside the United States
for payment on such Unregistered Securities or coupons appertaining thereto is illegal or effectively precluded by exchange controls or other similar restrictions, payments in Dollars of Unregistered Securities of any series and coupons appertaining
thereto which are payable in Dollars may be made at an agency of the Company maintained in the Borough of Manhattan, The City of New York, or Columbus, Georgia.
The Company may also from time to time designate one or more other offices or agencies where the Securities of any series may be presented or
surrendered for any or all such purposes and may from time to time rescind such designations; provided that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York, or Columbus, Georgia for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
Section 4.03 Securityholders’ Lists
. The Company will furnish or cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the holders of the Securities pursuant to Section 312 of the Trust Indenture Act of 1939 (a) semi-annually not more than 15 days after each record date for the payment of
semi-annual interest on the Securities, as hereinabove specified, as of such record date, and (b) at such other times as the Trustee may request in writing, within thirty days after receipt by the Company of any such request as of a date not
more than 15 days prior to the time such information is furnished.
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Section 4.04 Certificate to Trustee
. The Company will furnish to the Trustee annually, on
or before a date not more than four months after the end of its fiscal year (which, on the date hereof, is a calendar year), a brief certificate (which need not contain the statements required by Section 10.04) from its principal executive,
financial or accounting officer as to his or her knowledge of the compliance of the Company with all conditions and covenants under this Indenture (such compliance to be determined without regard to any period of grace or requirement of notice
provided under this Indenture) which certificate shall comply with the requirements of the Trust Indenture Act.
Section 4.05 Reports
by the Company
. The Company covenants to file with the Trustee, within 15 days after the Company is required to file the same with the Commission, copies of the annual reports and of the information, documents, and other reports which the
Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act.
Section
4.06 Additional Amounts
. If the Securities of a series provide for the payment of additional amounts, at least 10 days prior to the first interest payment date with respect to that series of Securities and at least 10 days prior to each date of
payment of Principal of or interest on the Securities of that series if there has been a change with respect to the matters set forth in the
below-mentioned
Officers’ Certificate, the Company shall
furnish to the Trustee and the principal Paying Agent, if other than the Trustee, an Officers’ Certificate instructing the Trustee and such Paying Agent whether such payment of Principal of or interest on the Securities of that series shall be
made to Holders of the Securities of that series without withholding or deduction for or on account of any tax, assessment or other governmental charge described in the Securities of that series. If any such withholding or deduction shall be
required, then such Officers’ Certificate shall specify by country the amount, if any, required to be withheld or deducted on such payments to such Holders and shall certify the fact that additional amounts will be payable and the amounts so
payable to each Holder, and the Company shall pay to the Trustee or such Paying Agent the additional amounts required to be paid by this Section. The Company covenants to indemnify the Trustee and any paying agent for, and to hold them harmless
against, any loss, liability or expense reasonably incurred without negligence or bad faith on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished pursuant
to this Section.
Whenever in this Indenture there is mentioned, in any context, the payment of the Principal of or interest or any other
amounts on, or in respect of, any Security of any series, such mention shall be deemed to include mention of the payment of additional amounts provided by the terms of such series established hereby or pursuant hereto to the extent that, in such
context, additional amounts are, were or would be payable in respect thereof pursuant to such terms, and express mention of the payment of additional amounts (if applicable) in any provision hereof shall not be construed as excluding the payment of
additional amounts in those provisions hereof where such express mention is not made.
Article 5. SUCCESSOR CORPORATION
Section 5.01 When Company May Merge, Etc
. The Company shall not consolidate with, merge with or into, or sell, convey, transfer, lease
or otherwise dispose of all or
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substantially all of its property and assets (in one transaction or a series of related transactions) to, any Person unless either (x) the Company shall be the continuing Person or
(y) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or to which properties and assets of the Company shall be sold, conveyed, transferred or leased shall be an entity organized and validly
existing under the laws of the United States of America or any jurisdiction thereof and shall expressly assume, by a supplemental indenture, executed and delivered to the Trustee, all of the obligations of the Company on all of the Securities and
under this Indenture and the Company in the case of clauses (x) and (y) shall have delivered to the Trustee (A) an Opinion of Counsel and an Officers’ Certificate stating that such consolidation, merger or sale, conveyance,
transfer or lease and such supplemental indenture (if any) complies with this provision and that all conditions precedent provided for herein relating to such transaction have been complied with and that such supplemental indenture (if any)
constitutes the legal, valid and binding obligation of the Company and such successor enforceable against such entity in accordance with its terms, subject to customary exceptions and (B) an Officers’ Certificate to the effect that
immediately after giving effect to such transaction, no Default shall have occurred and be continuing.
Section 5.02 Successor
Substituted
. Upon any consolidation or merger, or any sale, conveyance, transfer, lease or other disposition of all or substantially all of the property and assets of the Company in accordance with Section 5.01 of this Indenture, the
successor Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer, lease 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 had been named as the Company herein and thereafter the predecessor Person, except in the case of a lease, shall be relieved of all obligations and covenants under
this Indenture and the Securities.
Article 6. REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section 6.01 Events of Default.
“
Event of Default
”, when used herein with respect to the Securities of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be occasioned by the provisions of Article 11 or be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any interest upon any Security of
such series as and when the same shall become due and payable, and continuance of such default for a period of 30 days;
(b) default in
the payment of the principal of any Security of such series as and when the same shall become due and payable either at maturity, by declaration or otherwise;
(c) failure on the part of the Company duly to observe or perform any other of the covenants or agreements on the part of the Company in the
Securities of such series or in this
27
Indenture with respect to any Security of such series, and continuance of such failure for a period of 90 days after the date on which written notice of such failure, requiring the Company to
remedy the same, shall have been given to the Company by the Trustee, or to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of the Securities of such series at the time outstanding;
(d) a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Company in an involuntary case
under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company or for any substantial part of its
property, or ordering the winding up or liquidation of its affairs and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days;
(e) the Company shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect,
or shall consent to the entry of an order for relief in an involuntary case under any such law, or shall consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or similar official)
of the Company or for any substantial part of its property, or shall make any general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due or shall take any corporate action in furtherance of any of
the foregoing; or
(f) any other Event of Default established pursuant to Section 2.03 with respect to the Securities of such series
occurs.
If an Event of Default described in clause (d) or (e) above (each, a “
Bankruptcy Event of Default
”)
occurs and is continuing, then and in each such case either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Securities of any such series then outstanding hereunder (each such series treated as a separate class),
by notice in writing to the Company (and to the Trustee if given by Securityholders), may declare the principal amount (or, if the Securities of any such series are Original Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of such series established pursuant to Section 2.03) of all Securities of such series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable. This
provision, however, is subject to the condition that, at any time after such a declaration of acceleration, and before any judgment or decree for the payment of the money due shall have been obtained or entered as hereinafter provided, the Holders
of a majority in aggregate principal amount of the Securities of such series then outstanding, by written notice to the Company and to the Trustee, may waive all defaults and rescind and annul such declaration and its consequences, if:
(i) the Company shall pay or shall deposit with the Trustee a sum sufficient to pay:
(A) all matured installments of interest on all the Securities of such series (with interest on overdue installments of
interest (to the extent that payment of such interest is enforceable under applicable law) at the rate borne by the Securities of such series (or Yield to Maturity, in the case of Original Issue Discount Securities) to the date of such payment or
deposit); and
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(B) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and any other amounts due the Trustee under Section 7.07; and
(ii) any and all Defaults with respect to Securities of such series under this Indenture, other than the nonpayment of
Principal and accrued interest on Securities on such series that shall have become due by acceleration, shall have been cured or waived as provided in Section 6.07.
No such waiver or rescission and annulment shall extend or shall affect any subsequent Default or shall impair any right consequent thereon.
Unless otherwise expressly provided with respect to a series of Securities, there is no right of acceleration upon the occurrence of an
Event of Default described in clauses (a), (b), (c) or (f) above.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been accelerated and declared or become due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled,
the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the
principal thereof as shall be due and payable as a result of such acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.
In case the Trustee or any Securityholder shall have proceeded to enforce any right under this Indenture and such proceedings shall have been
discontinued or abandoned because of such rescission or annulment or for any other reason or shall have been determined adversely to the Trustee or any Securityholder, then and in every such case the Company, the Trustee and such Securityholders,
subject to any determination in such proceeding, shall be restored respectively to their several positions and rights under this Indenture, and all rights, remedies and powers of the Company, the Trustee and such Securityholders shall continue as
though no such proceeding had been taken.
Section 6.02 Payment of Securities on Default; Suit Therefor.
(a) In case default shall be made in the payment of (i) any installment of interest upon any Securities of any series as and when the
same shall become due and payable, and such default shall have continued for a period of 30 days, or (ii) the principal of any of the Securities of such series as and when the same shall have become due and payable, by declaration as authorized
by this Indenture or otherwise, then, upon demand of the Trustee, the Company will pay to the Trustee, for the benefit of the Holders of the Securities of such series, the whole amount that then shall have become due and payable on all such
Securities for Principal or
29
interest, or any combination thereof, as the case may be, with interest upon the portion of the overdue Principal that consists of principal and (to the extent that payment of such interest is
enforceable under applicable law) upon the overdue installments of interest, at the rate borne by the Securities of such series or Yield to Maturity (in the case of Original Issue Discount Securities); and, in addition, such further amount as shall
be sufficient to cover the costs and expenses of collection, including reasonable compensation, expenses, disbursements and advances of the Trustee, its agent, attorneys and counsel.
(b) In case the Company shall fail forthwith to pay such amounts upon such demand, or if an Event of Default as described in clauses (c)
or (f) of Section 6.01 shall have occurred and be continuing, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any actions or proceedings at law or in equity for the collection
of the sums so due and unpaid (or seek remedies for such other Event of Default), and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment or final decree against the Company or any other obligor
on the Securities of any series and collect in the manner provided by law out of the property of the Company or any other obligor on the Securities of such series, wherever situated, the money adjudged or decreed to be payable.
(c) In case there shall be pending proceedings for the bankruptcy or for the reorganization of the Company or any other obligor on the
Securities of any series under Title 11 of the United States Code or any other applicable law, or in case a receiver or trustee shall have been appointed for the property of the Company or such other obligor, or in the case of any other similar
judicial proceedings relative to the Company or other obligor on the Securities of such series, or to the creditors or property of the Company or such other obligor, the Trustee, irrespective of whether the principal of the Securities of such series
shall then be due and payable as expressed in the Securities of such series or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section 6.02, shall be entitled and
empowered, by intervention in such proceedings or otherwise, to file and prove a claim or claims for the whole amount of Principal and interest owing and unpaid in respect of the Securities of such series, and, in case of any judicial proceedings,
(i) to file such proofs of claim and 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 Securityholders allowed in such judicial proceedings relative to the Company or any other obligor on the Securities of such series, its or their creditors, or its or their property, and (ii) to
collect and receive any money or other property payable or deliverable on any such claims, and to distribute the same after the deduction of its charges and expenses; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the Securityholders to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payment directly to the Securityholders, to pay to the Trustee any amount due it for reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel and any other amounts due the Trustee under Section 7.07. To the extent that such payment of reasonable compensation, expenses and counsel fees out of
the trust estate in any such proceedings shall be denied for any reason, payment of the same shall be secured by a lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other property which the Holders of the
Securities of such series may be entitled to receive in such proceedings, whether in liquidation or under any plan of reorganization or arrangement or otherwise.
30
(d) Nothing contained in this Section 6.02 shall be deemed to authorize the Trustee to
authorize or consent to or adopt on behalf of any Securityholder any plan of reorganization or arrangement affecting the Securities of any series or the rights of any Securityholder, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding.
(e) All rights of action and of asserting claims under this Indenture, or under any of the
Securities of any series, may be enforced by the Trustee without the possession of any of the Securities of such series, or the production thereof in any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, shall
be for the ratable benefit of the Holders of the Securities of such series.
Section 6.03 Application of Money Collected by
Trustee.
Any money collected by the Trustee with respect to the Securities of any series pursuant to Section 6.02 shall be
applied in the following order, at the date or dates fixed by the Trustee for the distribution of such money, upon presentation of the Securities of such series and stamping thereon the payment, if only partially paid, and upon surrender thereof if
fully paid, subject in each case to Article 11:
FIRST: to the payment of all amounts then due the Trustee under Section 7.07;
SECOND: in case the principal of the outstanding Securities of such series shall not have become due and shall be unpaid, to the payment of
interest on the Securities of such series in the order of the maturity of the installments of such interest; with interest (to the extent enforceable under applicable law) upon the overdue installments of interest at the rate borne by the Securities
of such series or Yield to Maturity (in the case of Original Issue Discount Securities), such payments to be made ratably to the persons entitled thereto; and
THIRD: in case the principal of the outstanding Securities of such series shall have become due, by declaration or otherwise, to the payment
of the whole amount then owing and unpaid upon the Securities of such series for Principal and interest, with interest on the portion of the overdue Principal that consists of principal and (to the extent enforceable under applicable law) upon
overdue installments of interest at the rate borne by the Securities of such series or Yield to Maturity (in the case of Original Issue Discount Securities); and in case such money shall be insufficient to pay in full the whole amount so due and
unpaid upon the Securities of such series, then to the payment of such Principal and interest without preference or priority of Principal over interest or Yield to Maturity, or of interest or Yield to Maturity over Principal, or of any installment
of interest over any other installment of interest, or of any Security of such series over any other Security of such series, ratably to the aggregate of such Principal and accrued and unpaid interest or Yield to Maturity.
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Section 6.04 Proceedings by Securityholders.
No Holder of any Security of any series shall have any right to institute any suit, action or proceeding in equity or at law upon or under or
with respect to this Indenture or for the appointment of a receiver or trustee, or for any other remedy under this Indenture, unless (i) such Holder previously shall have given to the Trustee written notice of default and of the continuance
thereof, as provided in Section 6.01, (ii) the Holders of not less than 25% in aggregate principal amount of the Securities of such series then outstanding shall have made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee under this Indenture, (iii) such Holders shall have offered to the Trustee such reasonable security or indemnity as the Trustee may require against the costs, expenses and liabilities to be incurred in
compliance with such request, (iv) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity shall have neglected or refused to institute any such action, suit or proceeding and (v) 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, and being expressly covenanted by each Person who acquires and holds a Security of any series with every other such Person, that no one or more Holders of Securities of any 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 Holder of Securities, or to obtain or seek to obtain priority over or preference to any other such Holder, or to enforce any right under this
Indenture, except in the manner provided in this Section 6.04 and for the equal, ratable and common benefit of all Holders of Securities.
Notwithstanding any other provision of this Indenture, however, the right of any Holder of any Security of any series to receive payment of
the Principal and interest on such Security on or after the respective due dates, or to institute suit for the enforcement of any such payment on or after such respective dates against the Company, shall not be impaired or affected without the
consent of such Holder.
Section 6.05 Proceedings by Trustee.
In case of an Event of Default under this Indenture, the Trustee in its discretion may proceed to protect and enforce its rights and the
rights of the Securityholders by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, either by suit inequity or by action at law or by proceeding in bankruptcy or otherwise, whether
for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other proper remedy or legal or equitable right vested in the Trustee by this
Indenture or by law.
Section 6.06 Remedies Cumulative and Continuing; Delay or Omission Not Waiver.
All rights, powers and remedies conferred upon or reserved to the Trustee or to the Securityholders, to the extent permitted by law, shall be
deemed cumulative and not exclusive of any thereof or of any other rights, powers and remedies available to the Trustee or the Holders of the Securities of any series, now or hereafter existing, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this
32
Indenture; and no delay or omission of the Trustee or of any Holder of any of the Securities of any series to exercise any such right, power or remedy shall impair any such right, power or
remedy, or shall be construed to be a waiver of any default or an acquiescence in such default; and subject to the provisions of Section 6.04, every power and remedy conferred upon or reserved to the Trustee or the Securityholders may be
exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Securityholders. The assertion of any right, power or remedy shall not prevent the concurrent assertion of any other right, power or remedy.
Section 6.07 Direction of Proceedings and Waiver of Defaults by Majority of Securityholders.
(a) The Holders of a majority in aggregate principal amount (or, if the Securities are Original Issue Discount Securities, such portion of the
principal as is then accelerable under Section 6.01) of the Securities of any series affected (voting as one class) at the time outstanding determined in accordance with Section 2.09 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, however, that (i) such direction may not be in
conflict with law or this Indenture or expose the Trustee to personal liability or be unduly prejudicial to the Holders of Securities not joining in the direction, and (ii) the Trustee may take any other action deemed proper by the Trustee that
is not inconsistent with this Indenture and such direction.
(b) Prior to any declaration that the principal of the outstanding Securities
of any series affected is due and payable, the Holders of a majority in aggregate principal amount (or, if the Securities are Original Issue Discount Securities, such portion of the principal as is then accelerable under Section 6.01) of the
Securities of such series at the time outstanding on behalf of the Holders of all of the Securities of such series may waive any past default or Event of Default under this Indenture and its consequences except a default under a covenant in this
Indenture that, pursuant to Section 9.02, cannot be modified without the consent of each Holder of a Security of such series affected thereby. Upon any such waiver, the Company, the Trustee and the Holders of the Securities of such series shall
be restored to their former positions and rights under this Indenture, respectively; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon. Whenever any default or Event of
Default under this Indenture shall have been waived as permitted by this Section 6.07(b), such default or Event of Default, for all purposes of the Securities of such series and this Indenture, shall be deemed to have been cured and to be not
continuing.
Section 6.08 Notice of Defaults.
The Trustee, within 90 days after the occurrence of a Default with respect to Securities of any series, shall remit to all Securityholders of
Securities of such series, at their addresses shown on the Security Register, notice of all such defaults known to the Trustee, unless such Defaults shall have been cured or waived before the giving of such notice;
provided
that, except in
the case of Default in the payment of the Principal or interest on any of the Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee
of directors and/or Responsible Officers of the
33
Trustee in good faith determines that the withholding of such notice is in the interest of the Securityholders. If any Unregistered Securities of such series are then outstanding, any such notice
of Default shall be sent to the Holders thereof by publication at least once in an Authorized Newspaper in the Borough of Manhattan, The City of New York and at least once in an Authorized Newspaper in London, England. Any notice of a Default
delivered hereunder shall otherwise be distributed to all Holders of Securities of such series in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act.
Section 6.09 Undertaking to Pay Costs.
All parties to this Indenture agree, and each Holder of any Security of any series by his acceptance thereof shall be deemed to have agreed,
that any court in its discretion may 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 in its discretion may 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;
provided
,
however
, that the provisions of this Section 6.09 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 such series, or to any suit instituted by any Securityholder for the enforcement of the payment of the Principal or interest on any
Security of such series on or after their respective due dates.
Article 7. TRUSTEE
Section 7.01 General/Duties of Trustee.
(a) The duties and responsibilities of the Trustee shall be as provided by the Trust Indenture Act and as set forth herein. Notwithstanding
the foregoing, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers,
unless it receives indemnity satisfactory to it against any loss, liability or expense. 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 Article 7.
(b) The Trustee shall not be deemed to have notice of a Default or an
Event of Default unless a Responsible Officer of the Trustee has received written notice thereof.
(c) Except during the continuance of an
Event of Default, the Trustee shall not be liable except for the performance of such duties as are specifically set forth in this Indenture.
(d) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
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Section 7.02 Certain Rights of Trustee
. Subject to Trust Indenture Act Sections 315(a)
through (d):
(a) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate,
Officers’ Certificate, Opinion of Counsel (or both), statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper person or persons. The Trustee need not investigate any fact or matter stated in the document, but the Trustee, in its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit;
(b) before the Trustee acts or refrains from acting, it may require an Officers’ Certificate
and/or an Opinion of Counsel, which shall conform to Section 10.04 and shall cover such other matters as the Trustee may reasonably request. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on
such certificate or opinion. Subject to Sections 7.01 and 7.02, whenever in the administration of the trusts of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering or
omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and established by
an Officers’ Certificate delivered to the Trustee, and such certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof;
(c) the Trustee may act through its attorneys and agents not regularly in its employ
and shall not be responsible for the misconduct or negligence of any agent or attorney appointed with due care;
(d) any request,
direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officers’ Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any Board Resolution may be evidenced to
the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Company;
(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, order or direction of any of the Holders, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities that might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be liable
for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers or for any action it takes or omits to take in accordance with the direction of the Holders in accordance with
Section 6.07(a) 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;
(g) the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
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(h) prior to the occurrence of an Event of Default hereunder and after the curing or waiving of
all Events of Default, the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, Officers’ Certificate, Opinion of Counsel, Board Resolution, statement, instrument, opinion,
report, notice, request, consent, order, approval, appraisal, bond, debenture, note, coupon, security, or other paper or document unless requested in writing so to do by the Holders of not less than a majority in aggregate principal amount of the
Securities of all series affected then outstanding; provided that, if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require reasonable indemnity against such expenses or liabilities as a condition to proceeding;
(i) 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 and to the provisions of the Trust Indenture Act, and the provisions of this Article 7 shall apply to the Trustee in its role as Registrar and Paying Agent;
(j) delivery of any 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 may
conclusively rely on an Officers’ Certificate); and
(k) in no event shall the Trustee be responsible or liable for any failure or
delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military
disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which
are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
Section 7.03 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 its Affiliates with the same rights it would have if it were not the Trustee. Any Agent may do the same with like rights. However, the Trustee is subject to Trust Indenture Act
Sections 310(b) and 311. For purposes of Trust Indenture Act Section 311(b)(4) and (6), the following terms shall mean:
(a)
“
cash transaction
” means any transaction in which full payment for goods or securities sold is made within seven days after delivery of the goods or securities in currency or in checks or other orders drawn upon banks or bankers and
payable upon demand; and
(b) “
self-liquidating paper
” means any draft, bill of exchange, acceptance or obligation which
is made, drawn, negotiated or incurred by the Company for the purpose of financing the purchase, processing, manufacturing, shipment, storage or sale of goods, wares or merchandise and which is secured by documents evidencing title to, possession
of, or a lien
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upon, the goods, wares or merchandise or the receivables or proceeds arising from the sale of the goods, wares or merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor relationship with the Company arising from the making, drawing, negotiating or incurring of the draft, bill of exchange, acceptance or obligation.
Section 7.04 Trustee’s Disclaimer
. The recitals contained herein and in the Securities (except the Trustee’s certificate of
authentication) shall be taken as statements of the Company and not of the Trustee and the Trustee assumes no responsibility for the correctness of the same. Neither the Trustee nor any of its agents (a) makes any representation as to the
validity or adequacy of this Indenture or the Securities and (b) shall be accountable for the Company’s use or application of the proceeds from the Securities.
Section 7.05 (Intentionally Omitted.)
Section 7.06 Reports by Trustee to Holders
. 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
May 15 following the date of this Indenture, deliver to Holders a brief report, dated as of such May 15, which complies with the provisions of such Section 313(a).
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. The Company will promptly notify the Trustee when any Securities are listed on any stock exchange.
Section 7.07 Compensation and Indemnity
. The Company shall pay to the Trustee such compensation as shall be agreed upon in writing from
time to time for its services. The compensation of the Trustee shall not be limited by any law on compensation of a Trustee of an express trust. The Company shall reimburse the Trustee and any predecessor Trustee upon request for all reasonable
out-of-pocket expenses, disbursements and advances incurred or made by the Trustee or such predecessor Trustee. Such expenses shall include the reasonable compensation and expenses of the Trustee’s or such predecessor Trustee’s agents,
counsel and other persons not regularly in their employ.
The Company shall indemnify the Trustee and any predecessor Trustee for, and
hold them harmless against, any loss or liability or expense incurred by them without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of this Indenture and the Securities or the issuance of
the Securities or of series thereof or the trusts hereunder and the performance of duties under this Indenture and the Securities, including the costs and expenses of defending themselves against or investigating any claim or liability and of
complying with any process served upon them or any of their officers in connection with the exercise or performance of any of their powers or duties under this Indenture and the Securities.
To secure the Company’s payment obligations in this Section 7.07, the Trustee shall have a lien prior to the Securities on all money
or property held or collected by the Trustee, in its capacity as Trustee, except money or property held in trust to pay Principal of, and interest on particular Securities.
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The obligations of the Company under this Section to compensate and indemnify the Trustee and
each predecessor Trustee and to pay or reimburse the Trustee and each predecessor Trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall survive the satisfaction and discharge of this Indenture
or the rejection or termination of this Indenture under bankruptcy law. Such additional indebtedness shall be a senior claim to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust
for the benefit of the Holders of particular Securities or coupons, and the Securities are hereby subordinated to such senior claim. Without prejudice to any other rights available to the Trustee under applicable law, if the Trustee renders services
and incurs expenses following an Event of Default under Section 6.01(d) or Section 6.01(e) hereof, the parties hereto and the holders by their acceptance of the Securities hereby agree that such expenses are intended to constitute expenses
of administration under any bankruptcy law.
Section 7.08 Replacement of Trustee
. A resignation or removal of the Trustee as
Trustee with respect to the Securities of any series and appointment of a successor Trustee as Trustee with respect to the Securities of any series shall become effective only upon the successor Trustee’s acceptance of appointment as provided
in this Section 7.08.
The Trustee may resign as Trustee with respect to the Securities of any series at any time by so notifying the
Company in writing. The Holders of a majority in principal amount of the outstanding Securities of any series may remove the Trustee as Trustee with respect to the Securities of such series by so notifying the Trustee in writing and may appoint a
successor Trustee with respect thereto with the consent of the Company. The Company may remove the Trustee as Trustee with respect to the Securities of any series if: (i) the Trustee is no longer eligible under Section 7.11 of this
Indenture; (ii) the Trustee is adjudged a bankrupt or insolvent; (iii) a receiver or other public officer takes charge of the Trustee or its property; or (iv) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed as Trustee with respect to the Securities of any series, or if a vacancy exists in the office of Trustee
with respect to the Securities of any series for any reason, the Company shall promptly appoint a successor Trustee with respect thereto. Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the
outstanding Securities of such series may appoint a successor Trustee in respect of such Securities to replace the successor Trustee appointed by the Company. If the successor Trustee with respect to the Securities of any series does not deliver its
written acceptance required by Section 7.09 within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of a majority in principal amount of the outstanding Securities of such series may
petition any court of competent jurisdiction for the appointment of a successor Trustee with respect thereto.
The Company shall give
notice of any resignation and any removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee in respect of the Securities of such series to all Holders of Securities of such series. Each notice
shall include the name of the successor Trustee and the address of its Corporate Trust Office.
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Notwithstanding replacement of the Trustee with respect to the Securities of any series pursuant
to this Section 7.08 and Section 7.09, the Company’s obligations under Section 7.07 shall continue for the benefit of the retiring Trustee.
Section 7.09 Acceptance of Appointment by Successor
. In case of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall
become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such
retiring Trustee shall, upon payment of its charges and subject to the lien provided for in Section 7.07, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
In case
of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute
and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor
Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which
the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust 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; but, 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.
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No successor Trustee shall accept its appointment unless at the time of such acceptance such
successor Trustee shall be eligible under this Article and qualified under Section 310(b) of the Trust Indenture Act.
Section
7.10 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 corporation or national banking association, the resulting,
surviving or transferee corporation or national banking association without any further act shall be the successor Trustee with the same effect as if the successor Trustee had been named as the Trustee herein.
Section 7.11 Eligibility
. This Indenture shall always have a Trustee who satisfies the requirements of Trust Indenture Act
Section 310(a). The Trustee shall have a combined capital and surplus of at least $25,000,000 as set forth in its most recent published annual report of condition.
Section 7.12 Money Held in Trust
. 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 and except for money held in trust under Article 8 of this Indenture.
Article 8. SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
Section 8.01 Satisfaction and Discharge of Indenture
. If at any time (a) the Company shall have paid or caused to be paid the
Principal of and interest on all the Securities of any series outstanding hereunder (other than Securities of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.08) as and when
the same shall have become due and payable, or (b) the Company shall have delivered to the Trustee for cancellation all Securities of any series theretofore authenticated (other than any Securities of such series which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.08) or (c) (i) all the securities of such series not theretofore delivered to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and (ii) the Company shall have
irrevocably deposited or caused to be deposited with the Trustee as trust funds the entire amount in cash (other than moneys repaid by the Trustee or any paying agent to the Company in accordance with Section 8.04) or U.S. Government
Obligations, maturing as to principal and interest in such amounts and at such times as will insure (without consideration of the reinvestment of such interest) the availability of cash, or a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay at maturity or upon redemption all Securities of such series (other than any Securities of such series which
shall have been destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.08) not theretofore delivered to the Trustee for cancellation, including principal and interest due or to become due on or prior to
such date of maturity or redemption as the case may be, and if, in any such case, the Company is not prohibited from making payments in respect of the Securities by Article 11 hereof and shall also pay or cause to be paid all other sums payable
hereunder by the
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Company with respect to Securities of such series, then this Indenture shall cease to be of further effect with respect to Securities of such series (except as to (i) rights of registration
of transfer and exchange of securities of such series, and the Company’s right of optional redemption, if any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen Securities, (iii) rights of holders to receive payments
of principal thereof and interest thereon, upon the original stated due dates therefor (but not upon acceleration) and remaining rights of the holders to receive mandatory sinking fund payments, if any, (iv) the rights, obligations and
immunities of the Trustee hereunder and (v) the rights of the Securityholders of such series as beneficiaries hereof with respect to the property so deposited with the Trustee payable to all or any of them), and the Trustee, on demand of the
Company accompanied by an Officers’ Certificate and an Opinion of Counsel and at the cost and expense of the Company, shall execute proper instruments acknowledging such satisfaction of and discharging this Indenture with respect to such
series; provided, that the rights of Holders of the Securities to receive amounts in respect of Principal of and interest on the Securities held by them shall not be delayed longer than required by
then-applicable
mandatory rules or policies of any securities exchange upon which the Securities are listed. The Company agrees to reimburse the Trustee for any costs or expenses thereafter reasonably and
properly incurred and to compensate the Trustee for any services thereafter reasonably and properly rendered by the Trustee in connection with this Indenture or the Securities of such series.
Section 8.02 Application by Trustee of Funds Deposited for Payment of Securities
. Subject to Section 8.04, all moneys (including
U.S. Government Obligations and the proceeds thereof) deposited with the Trustee pursuant to Section 8.01, Section 8.05 or Section 8.06 shall be held in trust and applied by it to the payment, either directly or through any paying
agent to the Holders of the particular Securities of such series for the payment or redemption of which such moneys have been deposited with the Trustee, of all sums due and to become due thereon for Principal and interest; but such money need not
be segregated from other funds except to the extent required by law. Funds and U.S. Government Obligations held in trust under Section 8.01, 8.05 or 8.06 shall not be subject to the claims of the holders of Senior Indebtedness under Article 11.
Section 8.03 Repayment of Moneys Held by Paying Agent
. In connection with the satisfaction and discharge of this Indenture with
respect to Securities of any series, all moneys then held by any Paying Agent under the provisions of this Indenture with respect to such series of Securities shall, upon demand of the 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 8.04 Return of Moneys Held by
Trustee and Paying Agent Unclaimed for Two Years
. Any moneys deposited with or paid to the Trustee or any Paying Agent for the payment of the Principal of or interest on any Security of any series and not applied but remaining unclaimed for two
years after the date upon which such Principal or interest shall have become due and payable, shall, upon the written request of the Company and unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed
property law, be repaid to the Company by the Trustee for such series or such paying agent, and the Holder of the Security of such series shall, unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed
property laws, thereafter look only to the Company for any payment which such Holder may be entitled to collect, and all liability of the Trustee or any paying agent with respect to such moneys shall thereupon cease.
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Section 8.05 Defeasance and Discharge of Indenture
. The Company shall be deemed to have
paid and shall be discharged from any and all obligations in respect of the Securities of any series, on the 123rd day after the deposit referred to in clause (i) hereof has been made, and the provisions of this Indenture shall no longer be in
effect with respect to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), except as to: (a) rights of registration of transfer and exchange, and the
Company’s right of optional redemption, (b) substitution of apparently mutilated, defaced, destroyed, lost or stolen Securities, (c) rights of holders to receive payments of principal thereof and interest thereon, upon the original
stated due dates therefor (but not upon acceleration), (d) the rights, obligations and immunities of the Trustee hereunder and (e) the rights of the Securityholders of such series as beneficiaries hereof with respect to the property so
deposited with the Trustee payable to all or any of them; provided that the following conditions shall have been satisfied:
(i) with reference to this provision the Company has deposited or caused to be irrevocably deposited with the Trustee (or
another qualifying trustee satisfying the requirements of Section 7.11) as trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Securities of such series, (A) money in an
amount, or (B) U.S. Government Obligations 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 referred to in subclause
(x) or (y) of this clause (i) money in an amount, or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered
to the Trustee, to pay and discharge without consideration of the reinvestment of such interest and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee (x) the principal
of, premium, if any, and each installment of interest on the outstanding Securities of such series on the due dates thereof and (y) any mandatory sinking fund payments or analogous 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 Securities of such series and the Indenture with respect to the Securities of such series;
(ii) the Company has delivered to the Trustee (A) either (x) an Opinion of Counsel to the effect that Holders of
Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of the Company’s exercise of its option under this Section 8.05 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, which Opinion of Counsel must be based upon a ruling of the Internal Revenue Service to the same effect or a change in
applicable federal income tax law or related treasury regulations after the date of this Indenture or (y) a ruling directed to the Trustee received from the Internal Revenue Service to the same effect as the aforementioned Opinion of Counsel
and (B) an Opinion of Counsel to the effect that the creation of the defeasance trust does not violate the
42
Investment Company Act of 1940 and after the passage of 123 days following the deposit, the trust fund will not be subject to the effect of Section 547 of the U.S. Bankruptcy Code or
Section 15 of the New York Debtor and Creditor Law;
(iii) immediately after giving effect to such deposit on a pro
forma basis, no Event of Default, or event that after the giving of notice or lapse of time or both would become an Event of Default, shall have occurred and be continuing on the date of such deposit or during the period ending on the 123rd day
after the date of such deposit, and such deposit shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Company is a party or by which the Company is bound;
(iv) if at such time the Securities of such series are listed on a national securities exchange, the Company has delivered to
the Trustee an Opinion of Counsel to the effect that the Securities of such series will not be delisted as a result of such deposit, defeasance and discharge;
(v) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that
all conditions precedent to the defeasance and discharge under this Section have been complied with; and
(vi) if the
Securities of such series are to be redeemed prior to the final maturity thereof (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.
Section 8.06 Defeasance of Certain Obligations
. The Company may omit to
comply with any term, provision or condition set forth in, and this Indenture will no longer be in effect with respect to, any covenant established pursuant to Section 2.03(r) and clause (c) (with respect to any covenants established
pursuant to Section 2.03(r)) and clause (f) of Section 6.01 shall be deemed not to be an Event of Default, if
(a) with
reference to this Section 8.06, the Company has deposited or caused to be irrevocably deposited with the Trustee (or another qualifying trustee satisfying the requirements of Section 7.11) as trust funds in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of the Securities of such series and the Indenture with respect to the Securities of such series, (i) money in an amount or (ii) U.S. Government Obligations 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 dates thereof or earlier redemption (irrevocably provided for under agreements satisfactory to the Trustee),
as the case may be, of any payment referred to in subclause (x) or (y) of this clause (a) money in an amount, or (iii) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge without consideration of the reinvestment of such interest and after payment of all federal, state and local taxes or other charges and
assessments in respect thereof payable by the Trustee (x) the principal of, premium, if any, and each installment of interest on the outstanding Securities on the due date thereof or earlier redemption (irrevocably provided for under
arrangements satisfactory to the Trustee), as the case may be, and (y) any mandatory sinking
43
fund payments or analogous payments applicable to the Securities of such series and the Indenture with respect to the Securities of such series on the day on which such payments are due and
payable in accordance with the terms of the Indenture and of Securities of such series and the Indenture with respect to the Securities of such series;
(b) the Company has delivered to the Trustee (i) an Opinion of Counsel to the effect that Holders of Securities of such series will not
recognize income, gain or loss for federal income tax purposes as a result of the Company’s exercise of its option under this Section 8.06 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 defeasance had not occurred and (ii) an Opinion of Counsel to the effect that the creation of the defeasance trust does not violate the Investment Company Act of 1940 and after the passage
of 123 days following the deposit, the trust fund will not be subject to the effect of Section 547 of the U.S. Bankruptcy Code or Section 15 of the New York Debtor and Creditor Law;
(c) immediately after giving effect to such deposit on a pro forma basis, no Event of Default, or event that after the giving of notice or
lapse of time or both would become an Event of Default, shall have occurred and be continuing on the date of such deposit or during the period ending on the 123rd day after the date of such deposit, and such deposit shall not result in a breach or
violation of, or constitute a default under, any other agreement or instrument to which the Company is a party or by which the Company is bound;
(d) if at such time the Securities of such series are listed on a national securities exchange, the Company has delivered to the Trustee an
Opinion of Counsel to the effect that the Securities of such series will not be delisted as a result of such deposit, defeasance and discharge;
(e) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under this Section have been complied with; and
(f) if the Securities of such series are to be redeemed prior
to the final maturity thereof (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.
Section 8.07 Reinstatement
. If the Trustee or paying agent is unable to apply any monies or U.S. Government Obligations in
accordance with Article 8 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company’s obligations under this
Indenture and the Securities shall be revived and reinstated as though no deposit had occurred pursuant to this Article until such time as the Trustee or paying agent is permitted to apply all such monies or U.S. Government Obligations in accordance
with Article 8;
provided, however
, that if the Company has made any payment of Principal of or interest on any Securities because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such
Securities to receive such payment from the monies or U.S. Government Obligations held by the Trustee or paying agent.
44
Section 8.08 Indemnity
. The Company shall pay and indemnify the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.08 and Section 8.02, the “Trustee”) against any tax, fee or other charge, imposed on or assessed against the U.S. Government Obligations deposited pursuant to
Section 8.01, 8.05 or 8.06 or the principal or 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 Securities and any coupons appertaining thereto.
Section 8.09 Excess Funds
. Anything in this Article 8 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company
from time to time upon request of the Company, any money or U.S. Government Obligations (or other property and any proceeds therefrom) held by it as provided in Section 8.01, 8.05 or 8.06 which, in the opinion of a nationally recognized firm of
Independent Public Accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a discharge or defeasance, as applicable, in accordance
with this Article 8.
Section 8.10 Qualifying Trustee
. Any trustee appointed pursuant to Section 8.05 or 8.06 for the purpose
of holding money or U.S. Government Obligations deposited pursuant to such Sections shall be appointed under an agreement in form acceptable to the Trustee and shall provide to the Trustee a certificate, upon which certificate the Trustee shall be
entitled to conclusively rely, that all conditions precedent provided for herein to the related defeasance have been complied with. In no event shall the Trustee be liable for any acts or omissions of said trustee.
Article 9. AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01 Without Consent of Holders
. The Company and the Trustee may amend or supplement this Indenture or the Securities of any
series without notice to or the consent of any Holder:
(a) to cure any ambiguity, defect or inconsistency in this Indenture;
provided
that such amendments or supplements shall not materially and adversely affect the interests of the Holders;
(b) to comply
with Article 5;
(c) to comply with any requirements of the Commission in connection with the qualification of this Indenture under the
Trust Indenture Act;
(d) to evidence and provide for the acceptance of appointment hereunder with respect to the Securities of any or all
series by a successor Trustee and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of
Section 7.09;
(e) to establish the form or forms or terms of Securities of any series or of the coupons appertaining to such
Securities as permitted by Section 2.03;
(f) to provide for uncertificated or Unregistered Securities and to make all appropriate
changes for such purpose; and
45
(g) to make any change that does not materially and adversely affect the rights of any Holder.
Section 9.02 With Consent of Holders
. Subject to Sections 6.04 and 6.07(b), without prior notice to any Holders, the Company and
the Trustee may amend this Indenture and the Securities of any series with the written consent of the Holders of a majority in principal amount of the outstanding Securities of all series affected by such amendment (all such series voting as a
separate class), and the Holders of a majority in principal amount of the outstanding Securities of all series affected thereby (all such series voting as a separate class) by written notice to the Trustee may waive future compliance by the Company
with any provision of this Indenture or the Securities of such series.
Notwithstanding the provisions of this Section 9.02, without
the consent of each Holder affected thereby, an amendment or waiver, including a waiver pursuant to Section 6.07(b), may not:
(a)
change the stated maturity of the Principal of, or any sinking fund obligation or any installment of interest on, such Holder’s Security,
(b) reduce the Principal amount thereof or the rate of interest thereon (including any amount in respect of original issue discount);
(c) reduce the above stated percentage of outstanding Securities the consent of whose holders is necessary to modify or amend the Indenture
with respect to the Securities of the relevant series; and
(d) reduce the percentage in principal amount of outstanding Securities of the
relevant series the consent of whose Holders is required for any supplemental indenture or for any waiver of compliance with certain provisions of this Indenture or certain Defaults and their consequences provided for in this Indenture.
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which modifies the rights of Holders of Securities of such series with respect to such covenant or provision, shall be deemed not to affect the rights under this Indenture of
the Holders of Securities of any other series or of the coupons appertaining to such Securities.
It shall not be necessary for the
consent of any Holder under this Section 9.02 to approve the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Company shall give to the Holders affected
thereby a notice briefly describing the amendment, supplement or waiver. The Company will mail supplemental indentures to Holders upon request. Any failure of the Company to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture or waiver.
46
Section 9.03 Revocation and Effect of Consent
. Until an amendment or waiver becomes
effective, a consent to it by a Holder 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 Security of the consenting Holder, 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 its Security or portion of its Security. Such revocation shall be effective only if the Trustee receives the notice of revocation before the date
the amendment, supplement or waiver becomes effective. An amendment, supplement or waiver shall become effective with respect to any Securities affected thereby on receipt by the Trustee of written consents from the requisite Holders of outstanding
Securities affected thereby.
The Company may, but shall not be obligated to, fix a record date (which may be not less than five nor more
than 60 days prior to the solicitation of consents) for the purpose of determining the Holders of the Securities of any series affected entitled to consent to any amendment, supplement or waiver. If a record date is fixed, then, notwithstanding the
immediately preceding paragraph, those Persons who were such Holders at such record date (or their duly designated proxies) and only those Persons shall be entitled to consent to such amendment, supplement or waiver or to revoke any consent
previously given, whether or not such Persons continue to be such Holders after such record date. No such consent shall be valid or effective for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective with respect to the Securities of any series affected thereby, it shall bind every
Holder of such Securities unless it is of the type described in any of clauses (a) through (d) of Section 9.02. In case of an amendment or waiver of the type described in clauses (a) through (d) of Section 9.02, the
amendment or waiver shall bind each such Holder who has consented to it and every subsequent Holder of a Security that evidences the same indebtedness as the Security of the consenting Holder.
Section 9.04 Notation on or Exchange of Securities
. If an amendment, supplement or waiver changes the terms of any Security, the
Trustee may require the Holder thereof to deliver it to the Trustee. The Trustee may place an appropriate notation on the Security about the changed terms and return it to the Holder and the Trustee may place an appropriate notation on any Security
of such series thereafter authenticated. Alternatively, if the Company or the Trustee so determines, the Company in exchange for the Security shall issue and the Trustee shall authenticate a new Security of the same series and tenor that reflects
the changed terms.
Section 9.05 Trustee to Sign Amendments, Etc
. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Officers’ Certificate and an Opinion of Counsel stating that the execution of any amendment, supplement or waiver authorized pursuant to this Article 9 is authorized or permitted by this Indenture, stating that all
requisite consents have been obtained or that no consents are required and stating that such supplemental indenture constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms,
subject to customary exceptions. The Trustee may, but shall not be obligated to, execute any such amendment, supplement or waiver that affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
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Section 9.06 Conformity with Trust Indenture Act
. Every supplemental indenture executed
pursuant to this Article 9 shall conform to the requirements of the Trust Indenture Act as then in effect.
Article 10. MISCELLANEOUS
Section 10.01 Trust Indenture Act of 1939
. This Indenture shall incorporate and be governed by the provisions of the Trust Indenture
Act that are required to be part of and to govern indentures qualified under the Trust Indenture Act.
Section 10.02 Notices
. Any
notice or communication shall be sufficiently given if written and (a) if delivered in person when received or (b) if mailed by first class mail 5 days after mailing, or (c) as between the Company and the Trustee if sent by facsimile
transmission, when transmission is confirmed, in each case addressed as follows:
if to the Company:
Synovus Financial Corp.
1111
Bay Avenue, Suite 501
Columbus, Georgia 31901
Fax: (706) 323-7519
Attention: General Counsel
if
to the Trustee:
The Bank of New York Mellon Trust Company, N.A.
10161 Centurion Parkway N.
Jacksonville, Florida 32256
Fax: (904) 645-1972
Attention: Corporate Trust
The
Company or the Trustee by written notice to the other may designate additional or different addresses for subsequent notices or communications.
Any notice or communication shall be sufficiently given to Holders of any Unregistered Securities, by publication at least once in an
Authorized Newspaper in The City of New York, or with respect to any Security the interest on which is based on the offered quotations in the interbank Eurodollar market for dollar deposits at least once in an Authorized Newspaper in London, and by
mailing to the Holders thereof who have filed their names and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act at such addresses as were so furnished to the Trustee and to Holders of Registered Securities by
mailing to such Holders at their addresses as they shall appear on the Security Register.
Notice mailed shall be sufficiently given if so
mailed within the time prescribed. Copies of any such communication or notice to a Holder shall also be mailed to the Trustee and each Agent at the same time.
48
Failure to mail a notice or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders. Except as otherwise provided in this Indenture, if a notice or communication is mailed in the manner provided in this Section 10.02, it is duly given, whether or not the addressee receives it.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case it shall be impracticable to give notice as herein contemplated, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
Section 10.03
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 10.04 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 the certificate required by Section 4.04) shall include:
(a) a statement that each person signing such certificate or opinion has read such covenant or condition and the definitions herein relating
thereto;
(b) a brief statement as to the nature and scope of the examination or investigation upon which the statement or opinion
contained in such certificate or opinion is based;
(c) a statement that, in the opinion of each 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 each such person, such condition or covenant has been complied with; provided,
however, that, with respect to matters of fact, an Opinion of Counsel may rely on an Officers’ Certificate or certificates of public officials.
Section 10.05 Evidence of Ownership
. The Company, the Trustee and any agent of the Company or the Trustee may deem and treat the Holder
of any Unregistered Security and the Holder of any coupon as the absolute owner of such Unregistered Security or coupon (whether or
49
not such Unregistered Security or coupon shall be overdue) for the purpose of receiving payment thereof or on account thereof and for all other purposes, and neither the Company, the Trustee, nor
any agent of the Company or the Trustee shall be affected by any notice to the contrary. The fact of the holding by any Holder of an Unregistered Security, and the identifying number of such Security and the date of his holding the same, may be
proved by the production of such Security or by a certificate executed by any trust company, bank, banker or recognized securities dealer wherever situated satisfactory to the Trustee, if such certificate shall be deemed by the Trustee to be
satisfactory. Each such certificate shall be dated and shall state that on the date thereof a Security bearing a specified identifying number was deposited with or exhibited to such trust company, bank, banker or recognized securities dealer by the
person named in such certificate. Any such certificate may be issued in respect of one or more Unregistered Securities specified therein. The holding by the person named in any such certificate of any Unregistered Securities specified therein shall
be presumed to continue for a period of one year from the date of such certificate unless at the time of any determination of such holding (1) another certificate bearing a later date issued in respect of the same Securities shall be produced
or (2) the Security specified in such certificate shall be produced by some other Person, or (3) the Security specified in such certificate shall have ceased to be outstanding. Subject to Article 7, the fact and date of the execution of
any such instrument and the amount and numbers of Securities held by the Person so executing such instrument may also be proven in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in any other manner which
the Trustee may deem sufficient.
The Company, the Trustee and any agent of the Company or the Trustee may deem and treat the person in
whose name any Registered Security shall be registered upon the Security Register for such series as the absolute owner of such Registered Security (whether or not such Registered Security shall be overdue and notwithstanding any notation of
ownership or other writing thereon) for the purpose of receiving payment of or on account of the Principal of and, subject to the provisions of this Indenture, interest on such Registered Security and for all other purposes; and neither the Company
nor the Trustee nor any agent of the Company or the Trustee shall be affected by any notice to the contrary.
The Trustee agrees to accept
and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, pdf, facsimile transmission or other similar unsecured electronic methods, provided, however, that the Trustee shall have received an incumbency certificate
listing persons designated to give such instructions or directions and containing specimen signatures of such designated persons, which such incumbency certificate shall be amended and replaced whenever a person is to be added or deleted from the
listing. If the Company elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such
instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions
conflict or are inconsistent with a subsequent written instruction. The Company agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk
of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties.
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Section 10.06 Rules by Trustee, Paying Agent or Registrar
. The Trustee may make reasonable
rules for action by or at a meeting of Holders. The Paying Agent or Registrar may make reasonable rules for its functions.
Section
10.07 Payment Date Other Than a Business Day
. Except as otherwise provided with respect to a series of Securities, if any date for payment of Principal or interest on any Security shall not be a Business Day at any place of payment, then payment
of Principal of or interest on such Security, as the case may be, need not be made on such date, but may be made on the next succeeding Business Day at any place of payment with the same force and effect as if made on such date and no interest shall
accrue in respect of such payment for the period from and after such date.
Section 10.08 Governing Law
. The laws of the State of
New York shall govern this Indenture and the Securities.
Section 10.09 New York Courts Jurisdiction and Waiver of Trial by Jury
.
To the fullest extent permitted by applicable law, the parties hereto and each holder of Securities by its acceptance thereof hereby irrevocably submit to the non-exclusive jurisdiction of any Federal or State court located in the Borough of
Manhattan in The City of New York, New York in any suit, action or proceeding based on or arising out of or relating to this Indenture or any Securities and irrevocably agrees that all claims in respect of such suit or proceeding may be determined
in any such court. The parties irrevocably waive, to the fullest extent permitted by law, any objection which it may have to the laying of the venue of any such suit, action or proceeding brought in an inconvenient forum. The parties agree that
final judgment in any such suit, action or proceeding brought in such a court shall be conclusive and binding upon such party, and may be enforced in any courts to the jurisdiction of which each partyer is subject by a suit upon such judgment,
provided, that service of process is effected upon the Company in the manner specified herein or as otherwise permitted by law. EACH OF THE PARTIES HERETO AND EACH HOLDER OF SECURITIES BY ITS ACCEPTANCE THEREOF IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 10.10 No Adverse Interpretation of Other Agreements
. This Indenture may not be used to interpret another indenture or loan or
debt agreement of the Company or any Subsidiary of the Company. Any such indenture or agreement may not be used to interpret this Indenture.
Section 10.11 Successors
. All agreements of the Company in this Indenture and the Securities shall bind its successors. All agreements
of the Trustee in this Indenture shall bind its successors.
Section 10.12 Duplicate Originals
. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
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Section 10.13 Separability
. 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 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 and provisions hereof.
Section 10.15 Incorporators, Stockholders, Officers and Directors of Company Exempt from Individual Liability
. No recourse under or
upon any obligation, covenant or agreement contained in this Indenture or any indenture supplemental hereto, or in any Security or any coupons appertaining thereto, or because of any indebtedness evidenced thereby, shall be had against any
incorporator, as such or against any past, present or future stockholder, officer, director or employee, as such, of the Company or of any successor, either directly or through the Company or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Securities and the coupons appertaining thereto by
the holders thereof and as part of the consideration for the issue of the Securities and the coupons appertaining thereto.
Section
10.16 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 it is necessary to convert the sum due in respect of the
Principal of or interest on the Securities of any series (the “
Required Currency
”) into a currency in which a judgment will be rendered (the “
Judgment Currency
”), the rate of exchange used shall be the rate at which
in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the day on which final unappealable judgment is entered, unless such day is not a Business Day, then,
to the extent permitted by applicable law, the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the
Business Day preceding the day on which final unappealable judgment is entered and (b) its obligations under this Indenture to make payments in the Required Currency (i) shall not be discharged or satisfied by any tender, or any recovery
pursuant to any judgment (whether or not entered in accordance with subsection (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 payee, 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 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 such series, or to any suit instituted by any Securityholder for the enforcement of the
payment of the Principal or interest on any Security of such series on or after their respective due dates.
52
Section 10.17 Execution
. The exchange of signature pages duly executed and delivered by
each party hereto or the delivery of notices by a party hereto via facsimile or .pdf via email transmission shall constitute effective execution and delivery for purposes of this Indenture.
Section 10.18 FATCA
. In order to assist the Trustee with its compliance with Sections 1471 through 1474 of the U.S. Internal
Revenue Code and the rules and regulations thereunder (as in effect from time to time, collectively, “
FATCA
”) the Company agrees (i) to provide to the Trustee reasonably available information regarding the Company or the
holders of Securities (solely in their capacity as such) and which is necessary for the Trustee’s determination of whether it has tax related obligations under FATCA and (ii) that the Trustee shall be entitled to make any withholding or
deduction from payments under the Indenture to the extent necessary to comply with FATCA and shall have no liability in connection therewith other than as a result of its negligence or willful misconduct. Nothing in the immediately preceding
sentence shall be construed as obligating the Company to make any “gross up” payment or similar reimbursement in connection with a payment in respect of which amounts are so withheld or deducted.
Article 11. SUBORDINATION OF SECURITIES
Except to the extent expressly modified or supplemented in any supplemental indenture establishing any series of Securities, the following
subordination provisions shall govern such Securities.
Agreement to Subordinate. The Company, for itself, its successors and assigns,
covenants and agrees, and each Holder of a Security likewise covenants and agrees by his acceptance thereof, that the obligation of the Company to make any payment on account of the Principal and interest on each and all of the Securities shall be
subordinate and junior in right of payment to the Company’s obligations to the holders of Senior Indebtedness to the extent provided herein, and that in the case of any insolvency, receivership, conservatorship, reorganization, readjustment of
debt, marshalling of assets and liabilities or similar proceedings or any liquidation or winding-up of or relating to the Company as a whole, whether voluntary or involuntary, all obligations to holders of Senior Indebtedness shall be entitled to be
paid in full before any payment shall be made on account of the Principal or interest on the Securities. In the event of any such proceeding, after payment in full of all sums owing with respect to Senior Indebtedness, the Holders of the Securities,
together with the holders of any obligations of the Company Ranking on a Parity with the Securities, shall be entitled to be paid from the remaining assets of the Company the amounts at the time due and owing on account of unpaid Principal and
interest on the Securities before any payment or other distribution, whether in cash, property or otherwise, shall be made on account of any capital stock or any obligations of the Company Ranking Junior to the Securities. In addition, subject to
the provisions of Section 11.03, in the event of any such proceeding, if any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, including any such payment or distribution which
may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securities, shall be received by the Trustee or any Holder of the Securities before all Senior Indebtedness is
paid in full and if such Securityholder or the Trustee, as the case may be, receiving such payment is aware at the time or receipt that all Senior Indebtedness has not been paid in full, then such payment or distribution shall, if received by any
53
Securityholder, be held in trust for the benefit of the holders of Senior Indebtedness or, if received by the Trustee, shall be held by it and delivered forthwith to the trustee in bankruptcy,
receiver, assignee, agent or other Person making payment or distribution of the assets of the Company, and, in each case, shall be applied to the payment of all Senior Indebtedness remaining unpaid, until all such Senior Indebtedness shall have been
paid in full, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness. For purposes of this paragraph only, the words, “cash, property or securities” shall not be deemed to include shares of
stock of the Company as reorganized or readjusted, or securities of the Company or any other company provided for by a plan of reorganization or readjustment which are subordinated in right of payment to all Senior Indebtedness which may at the time
be outstanding to substantially the same extent as, or to a greater extent than, the Securities are so subordinated as provided in this Article 11.
The subordination provisions of the foregoing paragraph shall not be applicable to amounts at the time due and owing on the Securities on
account of the unpaid Principal or interest on the Securities for the payment of which funds have been deposited in trust with the Trustee or have been set aside by the Company in trust in accordance with the provisions of this Indenture; nor shall
such provisions impair any rights, interests, remedies or powers of any secured creditor of the Company in respect of any security the creation of which is not prohibited by the provisions of this Indenture.
If there shall have occurred and be continuing (a) a default in any payment with respect to any Senior Indebtedness or (b) an event
of default with respect to any Senior Indebtedness as a result of which the maturity thereof is accelerated, unless and until such payment default or event of default shall have been cured or waived or shall have ceased to exist, no payments shall
be made by the Company with respect to the Principal or interest on the Securities. The provisions of this paragraph shall not apply to any payment with respect to which the first paragraph of this Section 11.01 would be applicable.
The consolidation of the Company with, or the merger of the Company into, another Person or the liquidation or dissolution of the Company
following the conveyance or transfer of its properties and assets substantially as an entirety to another Person upon the terms and conditions set forth in Article 5 shall not be deemed a dissolution, winding-up, liquidation, reorganization,
assignment for the benefit of creditors or marshalling of assets and liabilities of the Company for the purposes of this Section 11.01 if the Person formed by such consolidation or into which the Company is merged or the Person which acquires
by conveyance or transfer such properties and assets substantially as an entirety, as the case may be, shall, as a part of such consolidation, merger, conveyance, or transfer, comply with the conditions set forth in Article 5.
Section 11.01 Obligation of the Company Unconditional.
Nothing contained in this Article 11 or elsewhere in this Indenture is intended to or shall impair, as between the Company and the Holders of
the Securities, the obligation of the Company, which is absolute and unconditional, to pay the Holders of the Securities the Principal and interest on the Securities when, where and as the same shall become due and payable, all in accordance with
the terms of the Securities and this Indenture, or is intended to or shall affect the relative rights of the Holders of the Securities and creditors other than the holders of Senior
54
Indebtedness, nor shall anything herein or therein prevent the Trustee or the Holder of any Security from exercising all remedies otherwise permitted by applicable law upon an Event of Default
under this Indenture, subject to the rights, if any, under this Article 11 of the holders of Senior Indebtedness in respect of cash, property, or securities of the Company received upon the exercise of any such remedy.
Section 11.02 Notice to Trustee of Facts Prohibiting Payment.
The Company shall give prompt written notice to a Responsible Officer of the Trustee located at the Corporate Trust Office of the Trustee of
any fact known to the Company which would prohibit the making of any payment to or by the Trustee in respect of the Securities. Notwithstanding the provisions of this Article 11 or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the making of any payment to or by the Trustee in respect of the Securities, unless and until the Trustee shall have received at its Corporate Trust Office written notice
thereof from the Company or a holder of Senior Indebtedness or from any trustee therefor, and, prior to the receipt of any such written notice, the Trustee, subject to the provisions of Section 7.01, shall be entitled in all respects to assume
that no such facts exist;
provided
,
however
, that if the Trustee shall not have received the notice provided for in this Section 11.03 at least three Business Days prior to the date upon which by the terms hereof any money may
become payable for any purpose (including, without limitation, the payment of the Principal or interest on any Security), then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive
such money and to apply the same to the purpose for which such money was received and shall not be affected by any notice to the contrary which may be received by it during or after such three Business Day period.
Subject to the provisions of Section 7.01, the Trustee shall be entitled to rely on the delivery to it of a written notice by a Person
representing itself to be a holder of Senior Indebtedness (or a trustee therefor) to establish that such notice has been given by a holder of Senior Indebtedness (or a trustee therefor). In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Article 11, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person
under this Article 11, and if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment.
Section 11.03 Application by Trustee of Moneys Deposited with It.
Anything in this Indenture to the contrary notwithstanding, any deposit of moneys by the Company with the Trustee or any other agent (whether
or not in trust) for any payment of the Principal or interest on any Securities shall, except as provided in Section 11.03, be subject to the provisions of Section 11.01.
55
Section 11.04 Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders of the Securities shall be subrogated to the rights of the holders of
Senior Indebtedness to receive payments or distributions of assets of the Company applicable to such Senior Indebtedness until the Principal and interest on the Securities shall be paid in full. For purposes of such subrogation, none of the payments
or distributions to the holders of the Senior Indebtedness to which the Holders of the Securities or the Trustee would be entitled except for the provisions of this Article 11, or of payments over pursuant to the provisions of this Article 11 to the
holders of Senior Indebtedness by Holders of the Securities or the Trustee shall, as among the Company, its creditors other than holders of Senior Indebtedness and the Holders of the Securities, be deemed to be a payment or distribution by the
Company to or on account of the Senior Indebtedness; it being understood that the provisions of this Article 11 are and are intended solely for the purpose of defining the relative rights of the Holders of the Securities, on the one hand, and the
holders of the Senior Indebtedness on the other hand.
Section 11.05 Subordination Rights Not Impaired by Acts or Omissions of
Company or Holders of Senior Indebtedness.
No right of any present or future holders of any Senior Indebtedness to enforce
subordination as herein provided shall at any time or in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any act or failure to act, in good faith, by any such holder, or by any noncompliance by the
Company with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof which any such holder may have or be otherwise charged with.
Section 11.06 Authorization of Trustee to Effectuate Subordination of Securities.
Each Holder of a Security, by his acceptance thereof, authorizes and expressly directs the Trustee on his behalf to take such actions as may
be necessary or appropriate to effectuate the subordination provided in this Article 11 and appoints the Trustee his attorney-in-fact for any and all such purposes.
If, in the event of any proceeding or other action relating to the Company referred to in the first sentence of Section 11.01, a proper
claim or proof of debt in the form required in such proceeding or action is not filed by or on behalf of the Holders of the Securities prior to fifteen days before the expiration of the time to file such claim or claims, then the holder or holders
of Senior Indebtedness shall have the right to file and are hereby authorized to file appropriate claim for and on behalf of the Holders of the Securities;
provided
, that no such filing by any holders of Senior Indebtedness shall preclude the
Trustee from filing such a proof of claim on behalf of the Holders of Securities.
Section 11.07 Right of Trustee to Hold Senior
Indebtedness.
The Trustee in its individual capacity shall be entitled to all of the rights set forth in this Article 11 in respect
of any Senior Indebtedness at any time held by it in its individual capacity
56
to the same extent as any other holder of such Senior Indebtedness, and nothing in this Indenture shall be construed to deprive the Trustee of any of its rights as such holder. Nothing in this
Article shall subordinate to Senior Indebtedness the claims of, or any payments to, the Trustee under Section 7.07.
Section 11.08 Article 11 Not to Prevent Events of Default.
The failure to make a payment pursuant to the Securities by reason of any provision in this Article shall not be construed as preventing the
occurrence of a Default or an Event of Default.
Section 11.09 Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term
“Trustee” as used in this Article 11 shall in such case (unless the content otherwise requires) be construed as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article in addition to or in place of the Trustee;
provided
,
however
, that Section 11.08 shall not apply to the Company or any Affiliate of the Company if it or such Affiliate acts as Paying Agent.
Section 11.10 Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Company referred to in this Article 11, the Trustee, subject to the provisions of
Section 7.01, and the Holders of the Securities shall be entitled to rely upon any order or decree entered by any court of competent jurisdiction in which such insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution,
winding-up or similar case or proceeding is pending, or a certificate of the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit of creditors, agent or other Person making such payment or distribution, delivered
to the Trustee or to the Holders of Securities for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of the Senior Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article 11.
Section 11.11 Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness and shall not be liable to any such holders if
it shall in good faith mistakenly pay over or distribute to Holders of Securities or to the Company or to any other Person, cash, property or securities to which any holders of Senior Indebtedness shall be entitled by virtue of this Article 11
or otherwise.
57
Section 11.12 Payment Permitted If No Default.
Nothing contained in this Article 11 or elsewhere in this Indenture or in any of the Securities shall prevent the Company from making payments
with respect to any series of Securities except as otherwise expressly provided in this Article 11.
[Signatures on Next Page]
58
SIGNATURES
IN WITNESS WHEREOF
, the parties hereto have caused this Indenture to be duly executed, all as of the date first written above.
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SYNOVUS FINANCIAL CORP.,
as Company
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By:
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/s/ Thomas J. Prescott
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Name:
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Thomas J. Prescott
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Title:
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Executive Vice President and Chief
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Financial Officer
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THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.,
as Trustee
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By:
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/s/ Julie Hoffman - Ramos
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Name: Julie Hoffman - Ramos
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Title: Vice President
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[Signature Page to Subordinated Indenture]
59
Exhibit 4.2
Execution Version
SYNOVUS FINANCIAL CORP.
as Company
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
as Trustee
FIRST
SUPPLEMENTAL INDENTURE
dated as of December 7, 2015
5.75% Fixed-to-Floating Rate Subordinated Notes due 2025
THIS FIRST SUPPLEMENTAL INDENTURE
(this “
First Supplemental Indenture
”),
dated as of December 7, 2015, is between
SYNOVUS FINANCIAL CORP.
, a corporation duly organized and existing under the laws of the State of Georgia (the “
Company
”), and
THE BANK OF NEW YORK MELLON TRUST COMPANY,
N.A.
, a national banking association, as Trustee (the “
Trustee
”).
RECITALS
WHEREAS
, the Company has heretofore executed and delivered an Indenture dated as of December 7, 2015 (the “
Base
Indenture
”) providing for the issuance from time to time by the Company of series of the Company’s Securities;
WHEREAS
, Sections 2.01 and 9.01(e) of the Base Indenture provide for the Company and the Trustee to enter into an indenture
supplemental to the Base Indenture to establish the forms or terms of Securities of any series as permitted by Article 2 of the Base Indenture;
WHEREAS
, pursuant to Article 2 of the Base Indenture, the Company desires to establish, issue and sell $250,000,000 in aggregate
principal amount of a new series of Securities to be known as its 5.75% Fixed-to-Floating Rate Subordinated Notes due 2025, the form and terms of which and the terms, provisions and conditions thereof to be set forth as provided in this First
Supplemental Indenture; and
WHEREAS
, the Company has requested that the Trustee execute and deliver this First Supplemental
Indenture and to undertake all requirements necessary to make this First Supplemental Indenture a valid, binding and enforceable instrument in accordance with its terms and the terms of the Base Indenture, and to make the Notes, when executed by the
Company and authenticated and delivered by the Trustee, the valid, binding and enforceable obligations of the Company and the execution and delivery of this First Supplemental Indenture has been duly authorized in all respects.
NOW, THEREFORE
, in consideration of the covenants and agreements set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.01 Relation to Base Indenture.
This First Supplemental Indenture constitutes an integral part of the Base Indenture.
Section 1.02 Definition of Terms.
For all purposes of this First Supplemental Indenture:
(a) Capitalized terms used herein without definition shall have the meanings set forth in the Base Indenture;
(b) a term defined anywhere in this First Supplemental Indenture that is also defined in the Base Indenture shall have the meaning set forth
in this First Supplemental Indenture and shall have the same meaning throughout;
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(c) the singular includes the plural and vice versa;
(d) headings are for convenience of reference only and do not affect interpretation;
(e) unless otherwise specified or unless the context requires otherwise, (i) all references in this First Supplemental Indenture to
Sections refer to the corresponding Sections of this First Supplemental Indenture and (ii) the terms “herein”, “hereof”, “hereunder” and any other word of similar import refer to this First Supplemental Indenture;
and
(f) the following terms have the meanings given to them in this Section 1.02(f):
“
Business Day
” shall mean any day that is not a Saturday or Sunday and that is not a day on which banking institutions in
Columbus, Georgia or New York, New York are authorized or obligated by law, regulation or executive order to be closed or a day in which the office of the Trustee is closed for business and, with respect to LIBOR determinations, any day on which
dealings in deposits in U.S. dollars are conducted between financial institutions in the London Interbank Eurocurrency market.
“
Covenant Default
” shall have the meaning set forth in Section 5.01(d) herein.
“
DTC
” shall have the meaning set forth in Section 2.03 herein.
“
Event of Default
” shall have the meaning set forth in Section 6.01 of the Base Indenture, as supplemented by Article 5
herein.
“
Fixed Rate Interest Payment Date
” shall have the meaning set forth in Section 2.05(b) herein.
“
Fixed Rate Period
” shall have the meaning set forth in Section 2.05(b) herein.
“
Floating Rate Interest Payment Date
” shall have the meaning set forth in Section 2.05(c) herein.
“
Floating Rate Period
” shall have the meaning set forth in Section 2.05(c) herein.
“
FRB
” shall mean the Board of Governors of the Federal Reserve System.
“
Global Note
” shall have the meaning set forth in Section 2.04 herein.
“
Interest Payment Date
” shall have the meaning set forth in Section 2.05(c) herein.
“
Interest Period
” shall mean, initially, the period from December 15, 2020 and ending on
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the day preceding the first Floating Rate Interest Payment Date occurring after such date and, thereafter, the period commencing on each Floating Rate Interest Payment Date and ending on the day
preceding the next Floating Rate Interest Payment Date.
“
LIBOR
” shall mean the rate as published by Bloomberg (or
another commercially available source providing quotations of such rate as selected by the Company from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of the relevant applicable quarterly Interest
Period, as the rate for dollar deposits in the London interbank market with a three-month maturity. If such rate is not available at such time for any reason, then the rate for that Interest Period will be determined by such alternate method as
reasonably selected by the Company.
“
Maturity Date
” shall have the meaning set forth in Section 2.02 herein.
“
Notes
” shall have the meaning set forth in Section 2.01 herein.
“
Payment Default
” shall have the meaning set forth in Section 5.01(e) herein.
“
Proceeding
” shall mean any event of the kind described in clauses (a) through (d) of Section 4.01 hereof.
“
Ranking Junior to the Notes
”, when used with respect to any obligation of the Company, shall mean any obligation of the
Company which (a) ranks junior to and not equally with or prior to the Notes (or any other obligations of the Company ranking on a parity with the Notes) in right of payment upon the occurrence of any Proceeding or (b) is specifically
designated as ranking junior to the Notes by express provision in the instrument creating or evidencing such obligation. The securing of any obligations of the Company, which obligations otherwise have a ranking junior to the Notes, shall be deemed
to prevent such obligations from constituting obligations ranking junior to the Notes. For the avoidance of doubt, any junior subordinated debt securities issued or assumed by the Company shall be deemed securities ranking junior to the Notes other
than any such securities issued after the date hereof that by their terms expressly rank on a parity with the Notes.
“
Ranking on
a Parity with the Notes
”, when used with respect to any obligation of the Company, shall mean any obligation of the Company which (a) ranks equally with and not prior to the Notes in right of payment upon the occurrence of any
Proceeding or (b) is specifically designated as ranking on a parity with the Notes by express provision in the instrument creating or evidencing such obligation. The securing of any obligations of the Company, which obligations otherwise have a
ranking on a parity with the Notes, shall not be deemed to prevent such obligations from constituting obligations ranking on a parity with the Notes.
“
Senior Debt
” shall mean all of the Company’s:
(a) indebtedness for borrowed or purchased money, whether or not evidenced by bonds, debentures, notes, or other written instruments;
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(b) obligations under letters of credit;
(c) indebtedness or other obligations with respect to commodity contracts, interest rate and currency swap agreements, cap, floor, and collar
agreements, currency spot and forward contracts, and other similar agreements or arrangements designed to protect against fluctuations in currency exchange or interest rates;
(d) obligations to its general creditors (as defined for purposes of the capital adequacy regulations of the FRB applicable to the Company, as
the same may be amended or modified from time to time); and
(e) guarantees, endorsements (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), and other similar contingent obligations in respect of obligations of others of a type described in the immediately preceding clauses (a), (b), (c) and (d), whether or not such
obligation is classified as a liability on a balance sheet prepared in accordance with accounting principles generally accepted in the United States, in each case whether outstanding on the date of this First Supplemental Indenture or arising
thereafter, and other than obligations Ranking on a Parity with the Notes or Ranking Junior to the Notes.
Notwithstanding the foregoing,
and for the avoidance of doubt, if the FRB (or other successor regulatory agency or authority) promulgates any rule or issues any interpretation that defines general creditor(s), the main purpose of which is to establish criteria for determining
whether the subordinated debt of a bank holding company is to be included in its capital, then the term ‘‘general creditors’’ as used herein shall have the meaning as described in that rule or interpretation.
“
Tax Event
” shall mean the receipt by the Company of an opinion of independent tax counsel to the effect that as a result of
any amendment to, or change (including any announced prospective change) in, the laws or any regulations of the United States or any political subdivision or taxing authority, or as a result of any official administrative pronouncement or judicial
decision interpreting or applying such laws or regulations, which amendment or change is effective or which pronouncement or decision is announced on or after the date of the issuance of the Notes, there is more than an insubstantial risk that the
interest payable on the Notes is not, or within 90 days of receipt of such opinion, will not be, deductible by the Company, in whole or in part, for U.S. federal income tax purposes.
“
Tier 2 Capital Event
” shall mean the receipt by the Company of an opinion of independent bank regulatory counsel to the
effect that, as a result of:
(a) any amendment to, or change (including any announced prospective change) in, the laws or any regulations
thereunder of the United States or any rules, guidelines or policies of an applicable regulatory authority for the Company; or
(b) any
official administrative pronouncement or judicial decision interpreting or applying such laws or regulations, which amendment or change is effective, or which pronouncement or decision is announced, on or after the date of this First Supplemental
Indenture,
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the Notes do not constitute, or within 90 days of the date of such opinion will not constitute, Tier 2 Capital (or its then equivalent if the Company were subject to such capital requirement) for
purposes of capital adequacy guidelines of the FRB (or its then equivalent if the Company were subject to such capital requirement) for purposes of capital adequacy guidelines of the FRB (or any successor regulatory authority with jurisdiction over
bank holding companies), as then in effect and applicable to the Company.
The terms “
Company
,”
“
Trustee
,” “
Base Indenture
,” and “
Notes
” shall have the respective meanings set forth in the recitals to this First Supplemental Indenture and the paragraph preceding such recitals.
ARTICLE 2
GENERAL TERMS
AND CONDITIONS OF THE NOTES
Section 2.01 Designation and Principal Amount.
There is hereby established and authorized a
series of Securities designated as the “5.75% Fixed-to-Floating Rate Subordinated Notes due 2025” (the “
Notes
”) having an initial aggregate principal amount of $250,000,000 (except for Notes authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other Notes pursuant to Sections 2.07, 2.08 or 2.10 of the Base Indenture and except for Notes which, pursuant to Section 2.02 of the Base Indenture, are deemed to never have
been authenticated and delivered under the Base Indenture). The Notes may be issued from time to time upon written order of the Company for the authentication and delivery of Notes pursuant to Sections 2.01 and 2.02 of the Base Indenture.
Section 2.02 Maturity.
The date upon which the Notes shall become due and payable at final maturity, together with any accrued and
unpaid interest, is December 15, 2025 (the “
Maturity Date
”).
Section 2.03 Form, Payment and
Appointment.
Except as provided in Sections 2.07, 2.08 and 2.10 of the Base Indenture, the Notes will be issued only in book-entry form. Principal of and interest on the Notes will be payable in global form without interest coupons
registered in the name of or held by The Depository Trust Company (“
DTC
”) or its nominee in immediately available funds to DTC or its nominee, as the case may be, as the Holder of such Global Note (as hereafter defined). The
principal of any certificated Notes will be payable at the office or agency of the Company maintained for such purpose in New York, New York, which shall initially be the principal office of the Trustee in New York, New York;
provided,
however
, that payment of interest may be made at the option of the Company by check mailed to the Person entitled thereto at such address as shall appear in the Security Register or by wire transfer to an account appropriately designated by the
Person entitled to payment;
provided
that the Paying Agent shall have received written notice of such account designation at least five Business Days prior to the date of such payment (subject to surrender of the relevant Note in the case of
a payment of interest on the Maturity Date).
The Security Registrar, Authenticating Agent and Paying Agent for the Notes shall initially
be the Trustee.
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The Notes will be issuable and may be transferred only in denominations of $2,000 or any amount
in excess thereof that is an integral multiple of $1,000. The specified currency of the Notes shall be U.S. Dollars.
The Notes shall not
be issued in bearer form and shall be issued only against payment in immediately available funds.
Section 2.04 Global Note.
The Notes shall be issued initially in the form of one or more fully registered global notes (each such global note, a “
Global Note
”) deposited with DTC or its designated custodian or such other Depositary as any officer of the
Company may from time to time designate. Unless and until a Global Note is exchanged for Notes in certificated form, such Global Note may be transferred, in whole but not in part, and any payments on the Notes shall be made, only to DTC or a nominee
of DTC, or to a successor Depositary selected or approved by the Company or to a nominee of such successor Depositary.
Section 2.05 Interest.
(a) Interest payable on any Interest Payment Date or the Maturity Date with respect to the Notes shall
be the amount of interest accrued from, and including, the immediately preceding Interest Payment Date in respect of which interest has been paid or duly provided for (or from and including the original issue date of December 7, 2015, if
no interest has been paid or duly provided for with respect to the Notes) to, but excluding, such Interest Payment Date or Maturity Date as the case may be.
(b) The Notes will bear interest at a fixed rate of 5.75% per annum from and including December 7, 2015 to, but excluding,
December 15, 2020 (or earlier redemption) (the “
Fixed Rate Period
”). Interest accrued on the Notes during the Fixed Rate Period will be payable semi-annually in arrears on June 15 and December 15 of each year,
commencing on June 15, 2016 (each such date a “
Fixed Rate Interest Payment Date
”). The interest accrued during the Fixed Rate Period will be paid to each holder in whose name a Note is registered at the close of business
on June 1 and December 1 (whether or not a Business Day) immediately preceding the applicable Fixed Rate Interest Payment Date.
(c) The Notes will bear a floating interest rate from and including December 15, 2020 to, but excluding, the Maturity Date (or
earlier redemption) (the “
Floating Rate Period
”). The floating interest rate will be equal to LIBOR for each applicable Interest Period
plus
418.2 basis points. Interest accrued on the Notes during the Floating Rate Period
will be payable quarterly in arrears on March 15, June 15, September 15, and December 15 of each year (each such date, a “
Floating Rate Interest Payment Date
,” and together with a Fixed Rate Interest Payment
Date, an “
Interest Payment Date
”). The interest accrued during the Floating Rate Period will be paid to each holder in whose name a Note is registered at the close of business on the March 1, June 1, September 1, and
December 1 (whether or not a Business Day) immediately preceding the applicable Floating Rate Interest Payment Date.
(d) Interest
will be computed on the basis of a 360-day year consisting of twelve 30-day months during the Fixed Rate Period, and, thereafter, a 360-day year and the number of days actually elapsed.
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(e) In the event that any scheduled Interest Payment Date for the Notes falls on a day that is
not a Business Day, then payment of interest payable on such Interest Payment Date will be postponed to, and shall be due on, the next succeeding day which is a Business Day with the same force and effect as if such payment was made on the
originally scheduled Interest Payment Date (and no interest on such payment will accrue for the period from and after such scheduled Interest Payment Date).
(f) In the event that the Maturity Date for any Note falls on a day that is not a Business Day with the same force and effect as if such
payment was made on the originally scheduled Maturity Date, then the related payments of principal, premium, if any, and interest may be made, and shall be due on, on the next succeeding day that is a Business Day (and no additional interest will
accrue on the amount payable for the period from and after the Maturity Date). Interest due on the Maturity Date (whether or not an Interest Payment Date) of any Notes will be paid to the Person to whom principal of such Notes is payable.
(g) Any interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (“
Defaulted
Interest
”) shall cease to be payable to the holder on the relevant record date by virtue of having been a holder on such date, and such Defaulted Interest may be paid by the Company, either to the holder in whose name the Notes are
registered at the close of business on a special record date for the payment of defaulted interest, or in any other lawful manner deemed practicable by the Trustee.
Section 2.06 No Sinking Fund.
The Notes are not entitled to the benefit of any sinking fund and any provision of the Base
Indenture relating to a sinking fund shall not be applicable to the Notes.
Section 2.07 Defeasance
. Section 8.05 and
8.06 of the Base Indenture shall be applicable to the Notes. However, and in addition, any defeasance of the Notes pursuant to the Base Indenture shall be subject to the Company obtaining the prior approval of the FRB and any additional requirements
that the FRB may impose with respect to defeasance of the Notes. Notwithstanding the foregoing, if, due to a change in law, regulation or policy subsequent to the date of this First Supplemental Indenture, the FRB does not require that defeasance of
instruments be subject to FRB approval in order for the instrument to be accorded Tier 2 Capital treatment, then no such approval of the FRB will be required for such defeasance.
Section 2.08 Satisfied and Discharged
. Section 8.01 of the Base Indenture shall be applicable to the Notes.
Section 2.09 Additional Issuances.
The Company may from time to time, without notice to, or the consent of, the holders of the
Notes, create and issue further notes ranking equally with the Notes and with identical terms in all respects (or in all respects except for the offering price, the payment of interest accruing prior to the issue date of such further notes or the
first payment of interest following the issue date of such further notes) in order that such further notes may be consolidated and form a single series of Notes and have the same terms as to status, redemption or otherwise as the notes;
provided,
however
, that a separate CUSIP number shall be issued for any such additional notes unless the notes are fungible for U.S. federal income tax purposes, subject to the procedures of DTC.
- 8 -
ARTICLE 3
REDEMPTION
The following
redemption provisions shall apply to the Notes.
Section 3.01 Applicability of Article.
(a) The Company may, at its
option, beginning with the Interest Payment Date of December 15, 2020, but not prior thereto (except as provided in paragraph (b) below), and on any Interest Payment Date thereafter, redeem the Notes, in whole or in part, subject to
obtaining the prior approval of the FRB to the extent such approval is then required under the rules of the FRB, at a redemption price equal to 100% of the principal amount of the Notes to be redeemed plus accrued and unpaid interest to, but
excluding, the date of redemption.
(b) The Notes may not otherwise be redeemed prior to the Maturity Date, except that the Company may
also, at its option, redeem the Notes before the Maturity Date in whole or in part upon the occurrence of (i) a Tax Event, (ii) a Tier 2 Capital Event, or (iii) the Company becoming required to register as an investment company
pursuant to the Investment Company Act of 1940, as amended, in each case, at a redemption price equal to 100% of the principal amount of the Notes to be redeemed plus accrued and unpaid interest to, but excluding, the date of redemption. Any
redemption pursuant to this paragraph (b) is subject to the prior approval of the FRB to the extent such approval is then required under the rules of the FRB.
(c) The Notes will not be redeemable at the option of the Company except as set forth in this Article 3. Notice of redemption shall be given
in accordance with Article 3 of the Base Indenture. Notice of redemption of the Notes to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request, by the Trustee in the name and at the expense
of the Company. Notwithstanding the foregoing, or any provisions contained in the Base Indenture to the contrary, any notice of redemption (and the making of any redemption payment) may be conditional at the Company’s discretion on one or more
condition(s) precedent, and, the redemption date (and the making of any redemption payment) may be delayed until such time as any or all of such conditions have been satisfied or revoked by the Company if the Company determines that such
condition(s) will not be satisfied.
(d) The Notes are not subject to redemption or prepayment at the option of the Holders of the Notes.
(e) Any partial redemption of the Notes pursuant to this Article 3 will be made pro rata among all of the Holders of the Notes.
(f) To the extent not inconsistent with the foregoing paragraphs (a) through (e) above, Article 3 of the Base Indenture shall
apply to any redemption hereunder.
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ARTICLE 4
SUBORDINATION
The
following subordination provisions shall apply to the Notes.
Section 4.01 Notes Subordinate to Senior Debt.
The Company
covenants and agrees that anything herein or the Notes to the contrary notwithstanding, the indebtedness evidenced by the Notes is subordinate and junior in right of payment to all Senior Debt to the extent provided herein, and each Holder of Notes,
by such Holder’s acceptance of such Notes, likewise covenants and agrees to the subordination provided for in this Article 4 and shall be bound by the provisions herein. Senior Debt shall continue to be Senior Debt and entitled to the benefits
of these subordination provisions irrespective of any amendment, modification, or waiver of any term of the Senior Debt or extension or renewal of the Senior Debt.
In the event of:
(a) any
insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment of debt, composition, or other similar proceeding relating to the Company or its property,
(b) any proceeding for the liquidation, dissolution, or other winding up of the Company, whether voluntary or involuntary and whether or not
involving insolvency or bankruptcy proceedings,
(c) any assignment by the Company for the benefit of creditors, or
(d) any other marshalling of the assets of the Company,
all obligations with respect to all Senior Debt shall first be paid in full before any payment or distribution, whether in cash, securities, or other
property, shall be made to any Holder of the Notes on account of the principal or interest on the Notes. Only after payment in full of all amounts owing with respect to Senior Debt shall the Holders of the Notes, together with holders of any
obligations of the Company Ranking on a Parity with the Notes, be entitled to be paid from any remaining assets of the Company on account of the principal of, or unpaid interest on, the Notes. Any payment or distribution, whether in cash,
securities, or other property (other than securities of the Company or any other Person provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions
with respect to the indebtedness evidenced by the Notes, to the payment of all Senior Debt at the time outstanding and to any securities issued in respect of such Senior Debt under any such plan of reorganization or readjustment), which would
otherwise (but for these subordination provisions) be payable or deliverable in respect of the Notes shall be paid or delivered directly to the holders of Senior Debt in accordance with the priorities then existing among such holders until all
Senior Debt (including any interest on such Senior Debt accruing after the commencement of any such proceedings) shall have been paid in full. In the event of any such proceeding, after payment in full of all sums owing with respect to Senior Debt,
the Holders of the Notes, together with the holders of any obligations of the Company ranking on a parity with the Notes, shall be entitled to be paid from the remaining assets of the Company the amounts at the
- 10 -
time due and owing on account of unpaid principal of (and premium, if any) and interest on the Notes and such other obligations before any payment or other distribution, whether in cash,
property, or otherwise, shall be made on account of any capital stock or any obligations of the Company ranking junior to the Notes and such other obligations.
In the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities,
or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with
respect to the indebtedness evidenced by the Notes, to the payment of all Senior Debt at the time outstanding and to any securities issued in respect of such Senior Debt under any such plan of reorganization or readjustment), shall be received by
the Trustee or any Holder in contravention of any of the terms herein, such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Debt at
the time outstanding in accordance with the priorities then existing among such holders for applications to the payment of all Senior Debt remaining unpaid, to the extent necessary to pay all such Senior Debt in full. In the event of the failure of
the Trustee or any Holder of the Notes to endorse or assign any such payment, distribution, or security, each holder of Senior Debt is irrevocably authorized to endorse or assign the same.
No present or future holder of any Senior Debt shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the
Notes by any act or failure to act on the part of the Company. Nothing contained herein shall impair, as between the Company and the Holders of the Notes, the obligation of the Company to pay to such Holders the principal of, (and premium, if any),
and interest on, such Notes or prevent the Trustee or the Holder from exercising all rights, powers and remedies otherwise permitted by applicable law or under the Base Indenture or this First Supplemental Indenture upon a default or Event of
Default, all subject to the rights of the holders of the Senior Debt to receive cash, securities, or other property otherwise payable or deliverable to the Holders.
Senior Debt shall not be deemed to have been paid in full unless the holders shall have received cash, securities, or other property equal to
the amount of such Senior Debt then outstanding. Upon the payment in full of all Senior Debt, the Holders of the Notes shall be subrogated to all rights of any holders of Senior Debt to receive any further payments or distributions applicable to the
Senior Debt until the indebtedness evidenced by the Notes shall have been paid in full, and such payments or distributions received by such Holders, by reason of such subrogation, of cash, securities, or other property which otherwise would be paid
or distributed to the holders of Senior Debt shall, as between the Company and its creditors other than the holders of Senior Debt, on the one hand, and such Holders, on the other hand, be deemed to be a payment by the Company on account of Senior
Debt, and not on account of the Notes.
The Trustee and Holders will take such action (including, without limitation, the delivery of this
First Supplemental Indenture to an agent for the holders of Senior Debt or consent to the filing of a financing statement with respect to this First Supplemental Indenture) as may, in the opinion of counsel designated by the holders of a majority in
principal amount of the Senior Debt at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisions.
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The provisions of this Section 4.01 shall not impair any rights, interests, remedies, or
powers of any secured creditor of the Company in respect of any security interest the creation of which is not prohibited by the provisions herein.
Section 4.02 No Payment When Senior Debt in Default.
(a) In the event and during the continuation of any default in the
payment of the principal of, or any premium or interest on, any Senior Debt beyond any applicable grace period with respect to such Senior Debt, or in the event that any event of default with respect to any Senior Debt shall have occurred and be
continuing permitting the holders of such Senior Debt (or the trustee or agent on behalf of the holders of such Senior Debt) to declare such Senior Debt due and payable prior to the date on which it would otherwise have become due and payable,
unless and until such event of default shall have been cured or waived or shall have ceased to exist and such acceleration shall have been rescinded or annulled, or (b) in the event any judicial proceeding shall be pending with respect to any
such default in payment or event of default, then no payment (including any payment which may be payable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Notes) shall be made by the Company
on account of the principal of, or any premium or interest on, the Notes or on account of the purchase or other acquisition of Notes.
In
the event that, notwithstanding the foregoing, the Company shall make any payment to the Trustee or the Holders prohibited by the foregoing provisions of this Section 4.02 and if such fact shall, at or prior to the time of such payment, have
been made known to a Responsible Officer of the Trustee or, as the case may be, such Holder, then and in such event such payment shall be paid over and delivered to the Company or to the holders of Senior Debt.
Section 4.03 Trustee and Holders of Notes May Rely on Certificate of Liquidating Agent; Trustee May Require Further Evidence as to
Ownership of Senior Debt; Trustee Not Fiduciary to Holders of Senior Debt.
Upon any payment or distribution of assets of the Company referred to in this Article 4, the Trustee and the Holders shall be entitled to rely upon an order or decree
made by any court of competent jurisdiction in which such dissolution or winding up or liquidation or reorganization or arrangement proceedings are pending or upon a certificate of the trustee in bankruptcy, receiver, assignee for the benefit of
creditors, or other Person making such payment or distribution, delivered to the Trustee or to the Holders, for the purpose of ascertaining the persons entitled to participate in such distribution, the holders of the Senior Debt and other
indebtedness of the Company, the amount of or payable on and the amount or amounts paid or distributed on such Senior Debt or other indebtedness, and all other facts pertinent to such Senior Debt or other indebtedness or to this Article 4. In the
absence of any such bankruptcy trustee, receiver, assignee, or other Person, the Trustee shall be entitled to rely upon a written notice by a Person representing himself or herself to be a holder of Senior Debt (or a trustee or representative on
behalf of such holder) as evidence that such Person is a holder of such Senior Debt (or is such a trustee or representative). In the event that the Trustee determines, in good faith, that further evidence is required with respect to the right of any
Person as a holder of Senior Debt to participate in any payments or distributions pursuant to this Article 4, the Trustee may request such person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Debt held
by such Person, as to the extent to which such Person is entitled to participate in such payment or
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distribution, and as to other facts pertinent to the rights of such Person under this Article 4, and if such evidence is not furnished, the Trustee may offer any payment to such Person pending
judicial determination as to the right of such Person to receive payment. The Trustee, however, shall not be deemed to owe any fiduciary duty to the holders of Senior Debt.
Section 4.04 Payment Permitted If No Default
. Nothing contained in this Article 4 or elsewhere herein, or the Notes, shall prevent
(a) the Company at any time, except during the pendency of a Proceeding or under the conditions specified in Section 4.02, from making payments of the principal of, or interest on, the Notes or (b) the application by the Trustee or
any Paying Agent of any moneys deposited with it hereunder to payments of the principal of or interest on the Notes, if, at the time of such deposit, the Trustee or such Paying Agent, as the case may be, did not have the written notice provided for
in Section 4.05 of any event prohibiting the making of such deposit, or if, at the time of such deposit (whether or not in trust) by the Company with the Trustee or any Paying Agent (other than the Company) such payment would not have been
prohibited by the provisions of this Article, and the Trustee or any Paying Agent shall not be affected by any notice to the contrary received by it on or after such date.
Section 4.05 Trustee Not Charged with Knowledge of Prohibition
. Anything in this Article 4 or elsewhere contained herein to the
contrary notwithstanding, the Trustee shall not at any time be charged with knowledge of the existence of any facts which would prohibit the making of any payment of money to or by the Trustee and shall be entitled conclusively to assume that no
such facts exist and that no event specified in Section 4.01 or Section 4.02 has happened, until the Trustee shall have received an Officers’ Certificate at least three Business Days prior to the date on which any payment should be
made, to that effect or notice in writing to that effect signed by or on behalf of the holder or holders, or their representatives, of Senior Debt who shall have been certified by the Company or otherwise established to the reasonable satisfaction
of the Trustee to be such holder or holders or representatives or from any trustee under any indenture pursuant to which such Senior Debt shall be outstanding. The Company shall give prompt written notice to the Trustee and to the Paying Agent of
any facts which would prohibit the payment of money to or by the Trustee or any Paying Agent.
Section 4.06 Trustee to Effectuate
Subordination
. Each Holder of the Notes by such Holder’s acceptance authorizes and directs the Trustee in such Holder’s behalf to take such action as may be necessary or appropriate to effectuate the subordination as between such
Holder and holders of Senior Debt as provided in this Article and appoints the Trustee its attorney-in-fact for any and all such purposes.
Section 4.07 Rights of Trustee as Holder of Senior Debt
. The Trustee shall be entitled to all the rights set forth in this Article
with respect to any Senior Debt which may at the time be held by it, to the same extent as any other holder of Senior Debt; provided that nothing in this Article shall deprive the Trustee of any rights as such holder and provided further that
nothing in this Article shall apply to claims of, or payments to, the Trustee under or pursuant to Section 7.07 of the Base Indenture.
Section 4.08 Article Applicable to Paying Agents
. In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting under the
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Base Indenture with respect to the Notes, the term “Trustee” as used in this Article shall in such case (unless the context shall otherwise require) be construed as extending to and
including such Paying Agent within its meaning as fully for all intents and purposes as if the Paying Agent were named in this Article in addition to or in place of the Trustee, provided, however, that Sections 4.05 and 4.07 shall not apply to
the Company or any Affiliate of the Company if the Company or such Affiliate acts as Paying Agent.
Section 4.09 Subordination
Rights Not Impaired by Acts or Omissions of the Company or Holders of Senior Debt
. No right of any present or future holders of any Senior Debt to enforce subordination as provided herein shall at any time in any way be prejudiced or impaired by
any act or failure to act on the part of the Company or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the Company with the terms, provisions, and covenants hereto, regardless of any knowledge which any
such holder may have or be otherwise charged with. The holders of Senior Debt may, at any time or from time to time and in their absolute discretion, change the manner, place, or terms of payment, change or extend the time of payment of, or renew or
alter, any such Senior Debt, or amend or supplement any instrument pursuant to which any such Senior Debt is issued or by which it may be secured, or release any security, or exercise or refrain from exercising any other of their rights under the
Senior Debt, including, without limitation, the waiver of default, all without notice to or assent from the Holders of the Notes or the Trustee and without affecting the obligations of the Company, the Trustee, or the Holders of the Notes under this
Article.
Section 4.10 Modification of Subordination Provisions
. Anything contained herein or in the Base Indenture to the
contrary notwithstanding, no modification or amendment and no supplemental indenture shall modify the subordination provisions of this Article 4 in a manner that would adversely affect the holders of Senior Debt.
Section 4.11 Application of Money Collected
. With respect to the Notes, notwithstanding Section 6.03 of the Base Indenture,
any monies collected by the Trustee pursuant to Article 6 of the Base Indenture in any Proceeding shall be applied in the following order (but otherwise in accordance with Section 6.03 of the Base Indenture):
FIRST: To the payment of all amounts due the Trustee under Section 7.07 of the Base Indenture;
SECOND: To the payment of amounts then due and unpaid to the holders of Senior Debt, to the extent required by this Article 4; and
THIRD: To the payment of the amounts then due and unpaid for principal of and any premium and interest on the Notes 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 Notes for principal and any premium and interest, respectively.
Section 4.12 Subordination Provisions of Base Indenture
. To the extent not inconsistent with the foregoing Sections 4.01
through 4.11, the provisions of Article 11 of the Base Indenture shall apply to the Notes as if “Senior Indebtedness” thereunder were “Senior Debt” hereunder.
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Section 4.13 Ranking of Certain Existing Indebtedness
. In connection with this
Article 4, the Notes shall be:
(i) “Ranking on a Parity with the Notes” (as such phrase is defined under that certain
Indenture dated as of June 20, 2005 (and as the same may be modified, amended or supplemented from time to time) by and between the Issuer and The Bank of New York Mellon Trust Company, N.A., as Trustee, with respect to the issuance of
those certain 5.125% Subordinated Notes due 2017 issued by the Issuer (the “
Existing Subordinated Notes
”) and that, in connection with a Proceeding, the Notes and the Existing Subordinated Notes shall rank
pari passu
in
right of payment and equally with one another such that any cash, assets or other proceeds distributable to the holders of the Notes and the Existing Subordinated Notes in connection with, or arising out of, any Proceeding shall be applied to the
Notes and the Existing Subordinated Notes pro rata in accordance with the aggregate amount of outstanding and unpaid principal of, (premium, if any) and interest on, each of the Notes and the Existing Subordinated Notes;
(ii) subordinated in ranking and right of payment in any Proceeding to those certain 7.785% Senior Notes due 2019 issued by the Issuer
pursuant to that certain Senior Indenture dated as of February 13, 2012 (and as the same may be modified, amended or supplemented from time to time) by and between the Issuer and The Bank of New York Mellon Trust Company, N.A. and such
7.785% Senior Notes due 2019 shall constitute “Senior Debt” for purposes of this Article 4; and
(iii) senior in ranking
and right of payment in any Proceeding to those certain Junior Subordinated Debt Securities due June 15, 2035 issued by Banking Corporation of Florida (as a predecessor entity of the Issuer, “
BCF
”)) pursuant to that
certain Indenture dated April 19, 2005 (and as the same may be modified, amended or supplemented from time to time, the “
Junior Indenture
”) between BCF and JPMorgan Chase Bank, National Association and, as such, the Notes
shall constitute “Senior Indebtedness” under and as defined in the Junior Indenture.
ARTICLE 5
EVENTS OF DEFAULT
Section 5.01 Specification of Events of Default.
(a) Notwithstanding the terms of the Base Indenture, the following shall
constitute the sole “Events of Default” with respect to the First Supplemental Indenture and the Notes:
(1) the entry of a
decree or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States of America
or any political subdivision thereof, and such decree or order shall have continued unstayed and in effect for a period of 60 consecutive days; or
(2) the commencement by the Company of a voluntary case under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter
in effect of the United States of America or any political subdivision thereof, or the consent by the Company to the entry of a decree or order for relief in an involuntary case under any such law; or
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(3) the appointment of a receiver, conservator or similar official for the Company’s
principal banking subsidiary (which, for the avoidance of doubt, as of the date of this First Supplemental Indenture, is Synovus Bank).
(b) Notwithstanding the second paragraph of Section 6.01 of the Base Indenture, upon the occurrence of an Event of Default as set forth
above, all outstanding principal of, and all accrued but unpaid interest, and premium, if any, on, the Notes, shall become automatically and immediately due and payable, without any declaration or other action on the part of the Trustee or other
Holders of Notes.
(c) Pursuant to this Section 5.01, only upon the occurrence of an Event of Default described in paragraph (a)
of this Section 5.01 shall all outstanding Notes become automatically due and payable. Except solely upon the occurrence of such an Event of Default, the Trustee and/or the Holders of Notes shall have no right to declare the principal of, and
any accrued but unpaid interest, and premium, if any, on, the Notes, to be immediately due and payable.
(d) In addition to the
circumstances described in Section 6.02(b) of the Base Indenture, the Trustee, in its own name and as trustee, shall be entitled and empowered to institute actions or proceedings at law or in equity to seek remedies for the failure on the part
of the Company duly to observe or perform any other of the covenants or agreements on the part of the Company applicable to the Notes, and the continuance of such failure for a period of 90 days after the date on which written notice of such
failure, requiring the Company to remedy the same, shall have been given to the Company by the Trustee, or to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of the Notes at the time outstanding (such failure
and the continuance thereof after notice referred to herein as a “
Covenant Breach
”).
(e) The provisions of
Section 6.05 of the Base Indenture shall be applicable to the default in payment of the principal of, and/or accrued interest on, the Notes and, in the case of interest payments, the continuance of such default for 30 days as described in
Section 6.02(a) of the Base Indenture (such a default referred to herein as a “
Payment Default
”) and to any Covenant Breach.
(f) The provisions of Section 6.07(b) and 6.08 shall be applicable to any Payment Default or Covenant Breach in addition to the
occurrence of any Event of Default.
(g) To the extent not inconsistent with the foregoing, the provisions of Article 6 of the Base
Indenture shall apply to the Notes. Any references in Article 7 of the Base Indenture to the Trustee’s knowledge of, or actions taken or to be taken by the Trustee in connection with, a “Default” or “Event of Default”
shall also, for purposes of this First Supplemental Indenture, apply to the Trustee’s knowledge of, and actions taken or to be taken by the Trustee in connection with, a Payment Default or a Covenant Breach.
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ARTICLE 6
SUCCESSOR CORPORATION
Article 5 of the Base Indenture shall be applicable to the Notes;
provided, however
, that, as an additional condition to any
consolidation, merger, sale, conveyance, lease or other disposition of all or substantially all of its property and assets permitted thereunder, no Event of Default, and no Event of Default which, after notice or lapse of time or both, would become
an Event of Default, would occur and be continuing by reason of such transaction.
ARTICLE 7
FORM OF NOTES
Section 7.01 Form of Notes.
The Notes and the Trustee’s Certificate of Authentication to be endorsed thereon are to be
substantially in the forms attached as Exhibit A hereto, with such changes therein as the officers of the Company executing the Notes (by manual or facsimile signature) may approve, such approval to be conclusively evidenced by their execution
thereof.
ARTICLE 8
ISSUE OF NOTES
Section 8.01 Original Issue of Notes.
Notes having an aggregate principal amount of $250,000,000 may from time to time, upon
execution of this First Supplemental Indenture, be executed by the Company and delivered to the Trustee for authentication, and the Trustee shall thereupon authenticate and deliver said Notes to or upon the written order of the Company pursuant to
Section 2.02 of the Base Indenture without any further action by the Company (other than as required by the Base Indenture).
Section 8.02 Further Issues of Notes.
The Company may from time to time, without notice to or the consent of the Holders of the
Notes, create and issue further notes ranking
pari passu
with the Notes and with identical terms in all respects (or in all respects except for the offering price, the payment of interest accruing prior to the issue date of such further notes
or except for the first payment of interest following the issue date of such further notes) in order that such further notes may be consolidated and form a single series with the Notes and have the same terms as to status, redemption or otherwise as
the Notes.
ARTICLE 9
IMMUNITY OF STOCKHOLDERS, EMPLOYEES,
AGENTS, OFFICERS AND DIRECTORS
Section 9.01 Indenture and Notes Solely Corporate Obligations.
No recourse for the payment of the principal of or interest on any
Note, or for any claim based thereon or otherwise in respect thereof, shall be had against any shareholder, employee, agent, officer or director, as such, past, present or future, of the Company or of any successor corporation; it being expressly
understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the execution of this First Supplemental Indenture and the issuance of the Notes.
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ARTICLE 10
MISCELLANEOUS
Section 10.01 Ratification of Indenture.
The Base Indenture, as supplemented by this First Supplemental Indenture, is in all
respects ratified and confirmed, and this First Supplemental Indenture shall be deemed part of the Base Indenture in the manner and to the extent herein and therein provided. However, to the extent any provisions of this First Supplemental Indenture
conflicts with the provisions of the Base Indenture, the provisions of this First Supplemental Indenture shall govern and be controlling.
Section 10.02 Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not by the Trustee,
and the Trustee assumes no responsibility for the correctness thereof. The Trustee makes no representation as to the validity or sufficiency of this First Supplemental Indenture.
Section 10.03 New York Law to Govern.
THIS FIRST SUPPLEMENTAL INDENTURE AND EACH NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 10.04. New York Courts Jurisdiction and Waiver of Trial by Jury.
To the fullest extent permitted by applicable law, the Company and the Trustee and each Holder of Notes by its acceptance thereof hereby irrevocably submit to the
non-exclusive
jurisdiction of any Federal or
State court located in the Borough of Manhattan in The City of New York in any suit, action or proceeding based on or arising out of or relating to this First Supplemental Indenture or any Notes and irrevocably agrees that all claims in respect of
such suite or proceeding may be determined in any such court. The parties irrevocably waive, to the fullest extent permitted by law, any objection which it may have to the laying of the venue of any such suit, action or proceeding brought in any
inconvenient forum. The parties agree that final judgment in any such suit, action or proceeding brought in such a court shall be conclusive and binding upon such party, and may be enforced in any courts to the jurisdiction to which each party is
subject by a suit upon such judgment, provided, that service of process is effected upon the Company in the manner specified herein or as otherwise permitted by EACH OF THE COMPANY AND THE TRUSTEE AND EACH HOLDER OF THE NOTES BY ITS ACCEPTANCE
THEREOF IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS FIRST SUPPLEMENTAL INDENTURE, THE NOTES, OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
Section 10.05 Separability.
In case any one or more of the provisions contained in this First Supplemental Indenture
or in the Notes shall for any reason be held to be invalid, illegal or unenforceable in any respect, then, to the extent permitted by law, such invalidity, illegality or unenforceability shall not affect any other provisions of this First
Supplemental Indenture or of the Notes, but this First Supplemental Indenture and the Notes shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.
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Section 10.06 Amendments.
This First Supplemental Indenture may be amended in
accordance with Article 9 of the Base Indenture;
provided, however
, that: (a) the following additional amendments shall require the consent of each Holder affected thereby in addition to those set forth in the second paragraph of
Section 9.02 of the Base Indenture;
(i) change the place of payment where any Note or any interest thereon is payable;
(ii) impair the right to institute suit for the enforcement of any payment on or after the Maturity Date; and
(iii) modify the provisions of Article 4 hereof in a manner adverse to the Holders of Notes; and
(b) the First Supplemental Indenture may be amended without the consent of the Holders to conform this First Supplemental Indenture to the
terms and conditions of the Prospectus Supplement dated December 2, 2015 to the Prospectus dated July 18, 2013 pursuant to which the Notes were offered for sale.
Section 10.07 Counterparts.
This First Supplemental Indenture may be executed in any number of counterparts each of which shall be
an original, but such counterparts shall together constitute but one and the same instrument. The exchange of signature pages duly executed and delivered by the parties hereto by facsimile or .pdf via email transmission shall constitute effective
execution and delivery of this First Supplemental Indenture.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK.]
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IN WITNESS WHEREOF
, the parties hereto have caused this First Supplemental Indenture to be
duly executed, as of the day and year first written above.
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SYNOVUS FINANCIAL CORP.
, as Company
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By:
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/s/ Thomas J. Prescott
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Name:
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Thomas J. Prescott
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Title:
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Executive Vice President and Chief
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Financial Officer
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
, as Trustee
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By:
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/s/ Julie Hoffman - Ramos
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Name:
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Julie Hoffman - Ramos
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Title:
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Vice President
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[
Signature Page to First Supplemental Indenture
]
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EXHIBIT A
GLOBAL NOTE
THIS SECURITY IS A
REGISTERED GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE REFERRED TO IN THIS SECURITY AND A GLOBAL NOTE AS DEFINED IN THE FIRST SUPPLEMENTAL INDENTURE THERETO DATED DECEMBER 7, 2015 AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR
ITS NOMINEE. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE REGISTERED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO THE NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“
DTC
”), TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY IS NOT A DEPOSIT AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY
FEDERAL OR OTHER GOVERNMENTAL AGENCY.
A-1
SYNOVUS FINANCIAL CORP.
5.75% Fixed-to-Floating Rate Notes due 2025
ISIN: US87161CAK18 CUSIP: 87161CAK1
Synovus Financial Corp., a corporation duly organized and existing under the laws of the State of Georgia (hereinafter called
the “
Company
”, which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to CEDE & Co., or registered assigns the principal sum of TWO HUNDRED
FIFTY MILLION UNITED STATES DOLLARS on December 15, 2025 (such date is hereinafter referred to as the “
Maturity Date
”), and to pay interest thereon, as hereinafter set forth.
This Note will bear interest at a fixed rate of 5.75% per annum from and including December 7, 2015 to but excluding
December 15, 2020 (the “
Fixed Rate Period
”). Interest accrued on this Note during the Fixed Rate Period will be payable semi-annually in arrears on June 15 and December 15 of each year, commencing on
June 15, 2016 (each such date a “
Fixed Rate Interest Payment Date
”). The interest accrued during the Fixed Rate Period will be paid to each holder in whose name a Note is registered at the close of business on June 1
and December 1 (whether or not a Business Day) immediately preceding the applicable Fixed Rate Interest Payment Date.
This Note will bear a floating
interest rate from and including December 15, 2020 to but excluding the Maturity Date or earlier redemption (the “
Floating Rate Period
”). The floating interest rate will be equal to LIBOR for each applicable Interest
Period
plus
418.2 basis points. Interest accrued on this Note during the Floating Rate Period will be payable quarterly in arrears on March 15, June 15, September 15 and December 15 of each year (each such date, a
“
Floating Rate Interest Payment Date
”, together with a “
Fixed Rate Interest Payment Date
”, an “
Interest Payment Date
”). The interest accrued during the Floating Rate Period will be paid to each
holder in whose name a Note is registered at the close of business on the March 1, June 1, September 1 and December 1 (whether or not a Business Day) immediately preceding the applicable Floating Rate Interest Payment Date.
“
Interest Period
” shall mean, initially, the period from December 15, 2020 and ending on the day preceding the first Floating Rate
Interest Payment Date occurring after such date and, thereafter, the period commencing on each Floating Rate Interest Payment Date and ending on the day preceding the next Floating Rate Payment Date.
“
LIBOR
” means the rate as published by Bloomberg (or another commercially available source providing quotations of such rate as selected by
the Company from time to time) at approximately
A-2
11:00 a.m., London time, two Business Days prior to the commencement of the relevant applicable quarterly Interest Period, as the rate for dollar deposits in the London interbank market with a
three-month maturity. If such rate is not available at such time for any reason, then the rate for that Interest Period will be determined by such alternate method as reasonably selected by the Company.
Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months from and including December 7, 2015 to, but excluding,
December 15, 2020, and, thereafter, a 360-day year and the number of days actually elapsed.
In the event that any scheduled Interest Payment
Date for the Notes falls on a day that is not a Business Day, then payment of interest payable on such Interest Payment Date will be postponed to, and shall be due on, the next succeeding day which is a Business Day with the same force and effect as
if such payment was made on the originally scheduled Maturity Date (and no interest on such payment will accrue for the period from and after such scheduled Interest Payment Date).
In the event that the Maturity Date for the Notes falls on a day that is not a Business Day, then the related payments of principal, premium, if any, and
interest may be made, and shall be due on, the next succeeding day that is a Business Day with the same force and effect as if such payment was made on the originally scheduled Interest Payment Date (and no additional interest will accumulate on the
amount payable for the period from and after the Maturity Date). Interest due on the Maturity Date (whether or not an Interest Payment Date) of any Notes will be paid to the Person to whom principal of such Notes is payable.
Payment of the principal of and interest on this Note will be made at the office or agency of the Company maintained for that purpose in New York, New York,
which shall initially be the principal office of the Trustee located therein, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts;
provided, however,
that
payment of interest may be made at the option of the Company by check mailed to the Person entitled thereto at such address as shall appear in the Security Register (subject to surrender of the relevant Note in the case of a payment of interest on
the Maturity Date).
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee
referred to on the reverse hereof by manual or facsimile signature, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Signature Pages Follow]
A-3
IN WITNESS WHEREOF
, the Company has caused this instrument to be duly executed.
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SYNOVUS FINANCIAL CORP.
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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A-4
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
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THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A.
, as Trustee
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By:
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Name:
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Title:
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A-5
REVERSE OF NOTE
SYNOVUS FINANCIAL CORP.
This Note is one of a
duly authorized issue of securities of the Company (herein called the “
Note
”), issued and to be issued in one or more series under an Indenture (the “
Base Indenture
”), dated as of December 7, 2015, between
the Company and The Bank of New York Mellon Trust Company, N.A., as Trustee (herein called the “
Trustee
,” which term includes any successor trustee), as amended and supplemented by the First Supplemental Indenture between the
Company and the Trustee (the “
First Supplemental Indenture
” and together with the Base Indenture, the “
Indenture
”) dated as of December 7, 2015, to which Indenture reference is hereby made for a statement
of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Notes and of the terms upon which the Notes are, and are to be, authenticated and delivered. This Note is one of the
series designated on the face hereof, initially limited in aggregate principal amount to $250,000,000. The terms of this Note include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act. This
Note is subject to all such terms, and Holders are referred to the Indenture and the Trust Indenture Act for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions
of the Indenture shall govern and be controlling (to the extent permitted by law).
All terms used in this Note that are defined in the Indenture shall
have the meaning assigned to them in the Indenture.
The Company may, at its option, beginning with the Interest Payment Date of
December 15, 2020, but not prior thereto (except as provided below), and on any Interest Payment Date thereafter, redeem the Notes, in whole or in part, subject to obtaining the prior approval of the FRB to the extent such approval is then
required under the rules of the FRB, at a redemption price equal to 100% of the principal amount of the Notes to be redeemed plus accrued and unpaid interest to, but excluding, the date of redemption.
The Notes may not otherwise be redeemed prior to the Maturity Date, except that the Company may also, at its option (but subject to the prior approval of the
FRB to the extent such approval is then required under the rules of the FRB), redeem the Notes before the Maturity Date in whole, at any time, or in part from time to time, upon the occurrence of (i) a Tax Event, (ii) a Tier 2 Capital
Event, or (iii) the Company becoming required to register as an investment company pursuant to the Investment Company Act of 1940, as amended, in each case, at a redemption price equal to 100% of the principal amount of the Notes to be redeemed
plus accrued and unpaid interest to, but excluding, the date of redemption.
The Notes will not be redeemable at the option of the Company except as set
forth in Article 3 of the First Supplemental Indenture. Notice of redemption shall be given in accordance with Article 3 of the Base Indenture. Any partial redemption of the Notes will be made pro rata among all of the Holders of the Notes.
Notice of redemption of the Notes to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request, by the Trustee in the name and at the expense of the Company.
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Any notice of redemption may be conditional at the Company’s discretion on one or more conditions precedent,
and the redemption date may be delayed until such time as any or all of such conditions have been satisfied or revoked by the Company if the Company determines that such condition(s) will not be satisfied.
The Notes are not subject to redemption or prepayment at the option of the Holders of the Notes. The Notes are not entitled to the benefit of any sinking
fund.
If one or more of the Events of Default identified in Article 5 of the First Supplemental Indenture with respect to Notes shall occur and be
continuing, the principal of the Notes shall become immediately due and payable in the manner and with the effect provided in the Indenture. Except solely upon the occurrence of such Events of Default specified in Article 5 of the First
Supplemental Indenture, the Trustee and/or the Holders of Notes shall have no right to declare the Notes, and any accrued but unpaid interest, and premium, if any, on the Notes, to be immediately due and payable.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company
and the rights of the Holders of the Notes at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the Notes affected thereby and at the time Outstanding. The Indenture also contains provisions
permitting the Holders of a majority in principal amount of the Notes at the time Outstanding, on behalf of the Holders of all Notes, to waive certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder
of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Note.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note is
registrable in the Security Register, upon surrender of this Note for registration of transfer at the office or agency of the Company in any place where the principal of and interest on this Note are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Notes, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without
coupons in denominations of $2,000 and any integral multiple of $1,000 in excess thereof.
The Trustee and any agent of the Company or the Trustee may
treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note is overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
THIS NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF SAID STATE.
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we
assign and transfer this Security to:
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(Insert assignee’s social security or tax I.D. no.)
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(Print or type assignee’s name, address and zip code)
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and irrevocably appoint as agent to transfer this Security on the books of the Company. The agent may substitute another to
act for him.
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Your Signature:
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(Sign exactly as your name appears on the other side of this Security)
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Your Name:
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Date:
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Signature
Guarantee:
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*
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* NOTICE: The Signature must be guaranteed by an Institution which is a member of one of the following recognized signature Guarantee Programs: (i) The
Securities Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange Medallion Program (MNSP); (iii) The Stock Exchange Medallion Program (SEMP); or (iv) such other guarantee program acceptable to the Trustee.
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SIGNATURE GUARANTEE
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Security registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program (“
STAMP
”) or such other “signature guarantee program” as may be determined by the Security registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
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SCHEDULE OF INCREASES OR DECREASES IN NOTE
The initial principal amount of this Note is $250,000,000. The following increases or decreases in the principal amount of this Note have been made:
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Date
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Amount of
decrease in
principal
amount
of this Note
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Amount of
increase in
principal
amount
of this Note
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Principal
amount of
this Note
following
such decrease
or
increase
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Signature of
authorized
signatory of
Trustee
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