Exhibit 1.1
$125,000,000
3.60% Senior Notes
due 2022
FULTON FINANCIAL CORPORATION
UNDERWRITING AGREEMENT
March 13, 2017
KEEFE, BRUYETTE &
WOODS, INC.
787 Seventh Avenue, 4th Floor
New York, New
York 10019
Ladies and Gentlemen:
Fulton
Financial Corporation, a Pennsylvania corporation (the “Company”), confirms its agreement (the “Agreement”) with Keefe, Bruyette & Woods, Inc. (the “Underwriter”), with respect to the issue and sale by the
Company and the purchase by the Underwriter of $125,000,000 aggregate principal amount of its 3.60% Senior Notes due 2022 (the “Securities”). The Securities will be issued in book-entry only form to Cede & Co. as nominee of The
Depository Trust Company (“DTC”) pursuant to the Letter of Representations, to be dated as of the Closing Time (as defined in Section 2 hereof), between the Company and DTC.
The Securities will be issued pursuant to the Indenture between the Company and Wilmington Trust, National Association, as Trustee (the
“Trustee”), dated as of March 16, 2017, as supplemented by the First Supplemental Indenture, dated as of March 16, 2017 (together, the “Indenture”). The Indenture and this Agreement are hereinafter referred to
collectively as the “Operative Documents.”
The Company has filed with the Securities and Exchange Commission (the
“Commission”) an “automatic shelf registration statement” (as defined in Rule 405 of the rules and regulations (the “1933 Act Regulations”) of the Commission under the Securities Act of 1933, as amended (the “1933
Act”)) on Form
S-3
(No.
333-197730)
covering the registration of certain securities, including the Securities, under the 1933 Act and the 1933 Act Regulations,
which registration statement, and any post-effective amendment thereto, became effective upon filing under Rule 462(e) of the 1933 Act Regulations (“Rule 462(e)”). Such registration statement, at any given time, including any amendments
thereto existing at such time, the exhibits and any schedules thereto on file with the Commission at such time, the information incorporated by reference therein pursuant to Item 12 of Form
S-3
under the 1933
Act at such time and the information otherwise deemed to be a part thereof or included therein at such time by the 1933 Act Regulations, is referred to herein as the “Registration Statement.” Promptly after execution and delivery of this
Agreement, the Company will prepare and file a prospectus supplement relating to the Securities with the Commission in accordance with the provisions of
Rule 430B of the 1933 Act Regulations (“Rule 430B”) and Rule 424(b) of the 1933 Act Regulations (“Rule 424(b)”). Any information included in such prospectus supplement that
was omitted from the Registration Statement or any post-effective amendment thereto that is deemed to be part thereof and included therein pursuant to Rule 430B is referred to herein as the “Rule 430B Information”. The final
prospectus and prospectus supplement relating to the Securities, including the documents incorporated by reference or deemed to be incorporated by reference therein pursuant to Item 12 of Form
S-3
under the
1933 Act, in the form first furnished to the Underwriter for use in connection with the offering of the Securities, are collectively referred to herein as the “Prospectus.” Each prospectus and prospectus supplement used in connection with
the offering of the Securities that omitted the Rule 430B Information is herein called a “preliminary prospectus.” For purposes of this Agreement, all references to the Registration Statement, the Prospectus or any preliminary
prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system (“EDGAR”).
All references in this Agreement to financial statements and schedules and other information which is “contained,”
“included” or “stated” (or other references of like import) in the Registration Statement, the Prospectus or any preliminary prospectus shall be deemed to include all such financial statements and schedules and other information
which are incorporated by reference in or otherwise deemed by the 1933 Act Regulations to be a part of or included in the Registration Statement, the Prospectus or any preliminary prospectus, as the case may be, prior to the execution of this
Agreement; and all references in this Agreement to amendments or supplements to the Registration Statement, the Prospectus or any preliminary prospectus shall be deemed to include the filing of any document under the Securities Exchange Act of 1934,
as amended (the “1934 Act”), which is incorporated by reference in or otherwise deemed by the 1933 Act Regulations to be a part of or included in the Registration Statement, the Prospectus or any preliminary prospectus, as the case may be,
after the execution of this Agreement.
SECTION 1.
Representations and Warranties
.
The Company represents and warrants to the Underwriter as of the date hereof, as of the Applicable Time (as defined in Section 1(b)
hereof) and as of the Closing Time, and agrees with the Underwriter, as follows:
(a)
Status as Well Known
Seasoned Issuer
. (A) At the time of filing the Registration Statement, (B) at the time of each subsequent amendment to the Registration Statement for the purposes of complying with Section 10(a)(3) of the 1933 Act (whether such
amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the 1934 Act or form of prospectus), (C) at the time the Company or any person acting on its behalf (within the meaning, for this subsection
only, of Rule 163(c) of the 1933 Act Regulations) made any offer relating to the Securities in reliance on the exemption of Rule 163 of the 1933 Act Regulations (“Rule 163”) and (D) at the date hereof, the Company was and is a
“well-known seasoned issuer” (as defined in Rule 405), including not having been and not being an “ineligible issuer” (as defined in Rule 405). The Registration Statement is an “automatic shelf registration
statement” (as defined in Rule 405), and the Securities, as of the date of their registration on the Registration Statement, were, and, as of the date hereof and as of the Closing Time, remain, eligible for registration by the Company on an
“automatic shelf registration statement” under
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Rule 405. The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the 1933 Act Regulations objecting to the use of the automatic shelf registration statement
form.
At the earliest time that the Company or another offering participant made a
bona
fide
offer (within the meaning of
Rule 164(h)(2) of the 1933 Act Regulations) of the Securities, the Company was not nor is an “ineligible issuer” (as defined in Rule 405).
(b)
Registration Statement, Prospectus and Disclosure Package at Time of Sale
. The Registration Statement became
effective upon filing under Rule 462(e) on July 30, 2014 and any post-effective amendment to the Registration Statement also become effective upon filing under Rule 462(e). No stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act and, to the knowledge of the Company, no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission, and any request on the part of the Commission for
additional information has been complied with.
Any offer that is a written communication relating to the Securities made by the Company
or any person acting on its behalf (within the meaning, for this subsection only, of Rule 163(c) of the 1933 Act Regulations) prior to the filing of the Registration Statement or any amendment thereto has been filed with the Commission in accordance
with the exemption provided by Rule 163 and otherwise complied with the requirements of Rule 163, including, without limitation, the legending requirement, to qualify such offer for the exemption from Section 5(c) of the 1933 Act provided by Rule
163.
At the time the Registration Statement became effective, at each deemed effective date with respect to the Securities pursuant to
Rule 430B(f)(2) of the 1933 Act Regulations and at the Closing Time, the Registration Statement complied, complies and will comply in all material respects with the requirements of the 1933 Act, the 1933 Act Regulations, the Trust Indenture Act of
1939, as amended (the “1939 Act”), and the rules and regulations of the Commission under the 1939 Act (the “1939 Act Regulations”), and did not, does not and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein not misleading. Neither the Prospectus nor any amendment or supplement thereto, when read together with the Prospectus, at the time the Prospectus or any
such amendment or supplement was issued or at the Closing Time, included or will include an untrue statement of a material fact or omitted or will 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. Each preliminary prospectus and the Prospectus complied, when filed with the Commission, in all material respects with the 1933 Act, 1933 Act Regulations and the 1939 Act, and each
preliminary prospectus and the Prospectus delivered to the Underwriter for use in connection with the offering of the Securities was identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to
the extent permitted by Regulation
S-T.
As of the Applicable Time, any Issuer General Use Free
Writing Prospectus (as defined below) and the Statutory Prospectus (as defined below), when considered together (collectively, as of the Applicable Time, the “Disclosure Package”), did not 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 under which they were made, not misleading.
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As used in this subsection and elsewhere in this Agreement:
“Applicable Time” means 4:00 p.m. (Eastern Daylight Savings Time) on March 13, 2017, or such other time as agreed by the
Company and the Underwriter.
“Statutory Prospectus” as of any time means the prospectus relating to the Securities that is,
immediately prior to that time, either included in the Registration Statement or deemed to be a part thereof, including any document incorporated therein by reference immediately prior to that time and any preliminary prospectus deemed to be a part
thereof.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus” (as defined in clause (h)(1) of
Rule 433 of the 1933 Act Regulations (“Rule 433”)) relating to the Securities that (i) is required to be filed with the Commission by the Company, (ii) is a “road show that is a written communication” within the meaning
of Rule 433(d)(8)(i), whether or not required to be filed with the Commission or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Securities or of the offering that does not reflect the final
terms, in each case in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the records of the Company pursuant to Rule 433(g).
“Issuer General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to
prospective investors (other than a “
bona
fide
electronic road show,” as defined in Rule 433 (the “Bona Fide Electronic Road Show”)), as evidenced by its being specified in Schedule II hereto.
Any Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the offer and sale of the
Securities or until any earlier date that the Company notified or notifies the Underwriter in writing, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the
Registration Statement or the Prospectus, including any document incorporated therein by reference and any preliminary or other prospectus deemed to be a part thereof that has not been superseded or modified.
The representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with any Underwriter’s Information (as defined in Section 6(a)(3) below).
(c)
Incorporated Documents
. The documents incorporated or deemed to be incorporated by reference in the
preliminary prospectus or the Prospectus, when read together with the other information in the preliminary prospectus or the Prospectus, at the time the Registration Statement became effective or such documents were filed with the Commission, as the
case may be, did not, and at the earlier of the time the Prospectus was first used and the first “time of sale,” within the meaning of Rule 159 under the 1933 Act Regulations, of Securities in this offering and at the Closing Time will
not, include an 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
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circumstances under which they were made, not misleading. The documents incorporated or deemed to be incorporated by reference in the Prospectus, when filed with the Commission, conformed or will
conform, as the case may be, in all material respects to the applicable requirements of the 1934 Act and the rules and regulations of the Commission thereunder (the “1934 Act Regulations”).
(d)
Independent Accountants
. KPMG LLP, who certified the financial statements and supporting schedules included
in the Prospectus, is an independent registered public accounting firm as required by the 1933 Act and the 1933 Act Regulations and the rules of the Public Company Accounting Oversight Board.
(e)
Financial Statements
. The consolidated historical financial statements, together with the related schedules
and notes, included in the preliminary prospectus, the Prospectus, the Disclosure Package and the Registration Statement present fairly, in all material respects, the financial position of the Company and its consolidated subsidiaries at the dates
indicated, and the statements of income, changes in equity and cash flows of the Company and its consolidated subsidiaries for the periods specified. Said financial statements have been prepared in conformity with generally accepted accounting
principles (“GAAP”) in the United States applied on a consistent basis throughout the periods involved. The supporting schedules, if any, included therein present fairly, in all material respects, the information required to be stated
therein. The summary financial data included therein present fairly, in all material respects, the information shown therein and have been compiled on a basis consistent with that of the audited financial statements included in the Prospectus.
(f)
Interactive Data
. The interactive data in eXtensible Business Reporting Language included or incorporated by
reference in the Registration Statement 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.
(g)
No Material Adverse Change in Business
. Since the respective dates as of which information is given in the
Prospectus, the Disclosure Package and the Registration Statement, except as otherwise stated therein, (A) neither the Company nor any of its subsidiaries has incurred any material losses or interference with its business from fire, explosion,
flood, earthquakes, accident or other calamity, whether or not covered by insurance, or from any strike, labor dispute or court or governmental action, order or decree, (B) there has been no material adverse change, or any development which
could reasonably be expected to have a material adverse change, in the condition, financial or otherwise, or in the earnings, properties, business affairs or business prospects of the Company and its subsidiaries, considered as one enterprise,
whether or not arising in the ordinary course of business (a “Material Adverse Effect”), (C) neither the Company nor any of its subsidiaries has entered any transaction, other than in the ordinary course of business, that is material to
the Company and its subsidiaries, considered as one enterprise, and (D) there has not been any material change in the capital stock of the Company or any of its Significant Subsidiaries (as defined below) (other than issuances or other
transfers of capital stock in the ordinary course of business pursuant to the Company’s employee benefit plans, the Company’s dividend reinvestment plan and employee stock purchase plan or repurchases of common stock by the Company
pursuant to a share repurchase program disclosed in the Prospectus) or any material increase in the long term indebtedness of the Company or its
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Significant Subsidiaries, and (E) the Company has not declared, paid or made any dividend or distribution of any kind on any class of its capital stock (each of clauses (A), (B), (C), (D)
and (E), a “Material Adverse Change”).
(h)
Regulatory Enforcement Matters
. Except as disclosed in
the Registration Statement, the Prospectus and the Disclosure Package, neither the Company nor any of its subsidiaries is subject or is party to, or has received any written notice that any of them may or will become subject or party to any
investigation with respect to, any
cease-and-desist
order, written agreement, consent agreement, memorandum of understanding or other regulatory enforcement action,
proceeding or order with or by, or is a party to any commitment letter or similar undertaking to, or is subject to any directive by, or has been a recipient of any supervisory letter from, or has adopted any board resolutions at the request of, any
Regulatory Agency (as defined below) that in any material respect (considered on a consolidated basis) currently relates to or restricts the conduct of their business or that in any manner relates to their capital adequacy, their credit policies, or
their management (each, a “Regulatory Agreement”), nor has the Company or any of its subsidiaries been advised in writing by any Regulatory Agency that it is considering issuing or requesting any such Regulatory Agreement, where any such
Regulatory Agreement could reasonably be expected to have a Material Adverse Effect. Except as disclosed in the Registration Statement, the Prospectus and the Disclosure Package, there is no unresolved violation, criticism or exception by any
Regulatory Agency with respect to any report or statement relating to any examination of the Company or any of its subsidiaries which, in the reasonable judgment of the Company, is expected to result in a Material Adverse Effect. As used herein, the
term “Regulatory Agency” means any federal or state agency charged with the supervision or regulation of depository institutions, or holding companies of depository institutions, or engaged in the insurance of depository institution
deposits, or engaged in the regulation and enforcement of consumer financial services, or any court, administrative agency or commission or other federal or state governmental agency, authority or instrumentality having supervisory or regulatory
authority with respect to the Company or any of its subsidiaries.
(i)
Good Standing of the Company
. The
Company has been duly organized and is validly existing as a corporation in good standing under the laws of the Commonwealth of Pennsylvania and has corporate power and authority to own, lease and operate its properties and to conduct its business
as described in the Registration Statement, the Prospectus and the Disclosure Package, to enter into and perform its obligations under each of the Operative Documents to which it is a party, and to issue the Securities, and is duly qualified as a
foreign corporation to transact business and is in good standing in each other jurisdiction in which such qualification or license is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the
failure to so qualify or be in good standing would not result in a Material Adverse Effect.
(j)
Financial
Holding Company
. The Company is a “financial holding company” as such term is defined in 12 C.F.R. § 225.81.
(k)
Subsidiaries
. Each “significant subsidiary” of the Company (as such term is defined in Rule
1-02
of Regulation
S-X)
(each, a “Significant Subsidiary” and, collectively, the “Significant Subsidiaries”) has been duly organized and is validly
existing and in good standing under the laws of the jurisdiction of its incorporation or organization, has corporate or similar
6
power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Prospectus and the Disclosure Package and is duly
qualified and licensed to transact business and is in good standing in each foreign jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure
to so qualify or to be in good standing would not result in a Material Adverse Effect. Except as is disclosed in the Registration Statement, the Prospectus and the Disclosure Package, each depository institution subsidiary of the Company listed on
Schedule III hereto (each, a “Bank Subsidiary” and, collectively, the “Bank Subsidiaries”) is a member in good standing of its applicable Federal Home Loan Bank, the deposit accounts of each such Bank Subsidiary are insured up to
the applicable limit by the Federal Deposit Insurance Corporation (the “FDIC”) and no proceedings for the revocation or termination of such insurance is pending or, to the knowledge of the Company, threatened. The only Significant
Subsidiaries of the Company are Fulton Bank, National Association, Fulton Bank of New Jersey, and The Columbia Bank.
(l)
Capital Stock Duly Authorized and Validly Issued
. All of the issued and outstanding shares of capital stock
of the Company have been duly authorized and validly issued and are fully paid and nonassessable. All of the issued and outstanding shares of capital stock of each Bank Subsidiary have been duly authorized and validly issued, are fully paid and
nonassessable and are owned by the Company, directly or through one or more other subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equitable right. None of the issued and outstanding shares of
capital stock of the Company or any Bank Subsidiary were issued in violation of any preemptive or similar rights of any shareholder of the Company or any Bank Subsidiary, as the case may be, arising by operation of law, or under the certificate of
incorporation, bylaws or other organizational documents of the Company or any Bank Subsidiary or under any agreement to which the Company or any Bank Subsidiary is a party.
(m)
Capitalization
. The authorized, issued and outstanding capital stock and consolidated long term debt (i.e.,
a maturity greater than one year) of the Company as of December 31, 2016 is as set forth in the Prospectus under “Capitalization.” There have not been any subsequent issuances of capital stock of the Company since such date (except
issuances of common stock pursuant to exercises of employee stock options and pursuant to the Company’s dividend reinvestment plan and employee stock purchase plan). There have not been any additional long term borrowings by the Company or its
consolidated subsidiaries since such date, except, with respect to the Bank Subsidiaries, pursuant to Federal Home Loan Bank advances or securities sold under agreements to repurchase by the Bank Subsidiaries in their ordinary course of business.
(n)
Authorization of Agreement
. This Agreement has been duly authorized, executed and delivered by the
Company.
(o)
Authorization of Indenture
. The Indenture has been duly authorized by the Company and, when
executed and delivered by the Company, the Indenture will constitute a valid, legal and binding agreement of the Company, enforceable against the Company in accordance with its terms, except to the extent that enforceability may be limited by
(a) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws
7
now or hereafter in effect relating to creditors’ rights generally and (b) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in
equity) (collectively, the “Enforceability Exceptions”).
(p)
Authorization of Securities
. The
Securities have been duly authorized by the Company and, at the Closing Time, will have been duly executed by the Company and, when authenticated in the manner provided for in the Indenture and delivered by the Company against payment therefor as
described in the Prospectus or as contemplated in the Indenture, will constitute valid, legal and binding obligations of the Company, enforceable against the Company in accordance with their terms, except to the extent that enforceability may be
limited by the Enforceability Exceptions; the Securities will be in the form contemplated by, and will be entitled to the benefits of, the Indenture.
(q)
Qualification under 1939 Act
. The Indenture has been duly qualified with respect to the Securities under the
1939 Act.
(r)
Not an Investment Company
. The Company is not, and immediately following consummation of the
transactions contemplated hereby and the application of the net proceeds as described in the Registration Statement, the Prospectus and the Disclosure Package, the Company will not be, an “investment company” or an entity controlled by an
“investment company,” in each case within the meaning of Section 3(a) of the Investment Company Act of 1940, as amended (the “1940 Act”), without regard to Section 3(c) of the 1940 Act.
(s)
Descriptions of Securities
. The Securities will conform, in all material respects, to all statements
relating thereto contained in the Registration Statement, the Prospectus and the Disclosure Package.
(t)
Absence of Defaults and Conflicts
. Neither the Company nor any of its subsidiaries is (i) in violation
of its charter, bylaws or other organizational document, (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which it is a party or by which it or any of them may be bound or to which any of its assets is subject (collectively, “Agreements and Instruments”), except for such defaults that
would not, individually or in the aggregate, result in a Material Adverse Effect, or (iii) except as disclosed in the Registration Statement, the Prospectus and the Disclosure Package, in violation of any U.S. or
non-U.S.
federal, state or local statute, law (including, without limitation, common law) or ordinance, or any judgment, decree, rule, regulation, order or injunction of any U.S. or
non-U.S.
federal, state, local or other governmental or regulatory authority, governmental or regulatory agency or body, court, arbitrator or self-regulatory organization applicable to the Company or any of its Bank
Subsidiaries or any of their respective properties, assets or operations (each, a “Governmental Entity”), except for any such default or violation that would not, individually or in the aggregate, have a Material Adverse Effect. The
execution, delivery and performance of the Operative Documents and the Securities by the Company, the issuance, sale and delivery of the Securities, the consummation of the transactions contemplated by the Operative Documents and the Securities, and
compliance by the Company with the terms of the Operative Documents and the Securities have been duly authorized by all necessary corporate action on the part of the Company, and do not and will not,
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whether with or without the giving of notice or passage of time or both, (i) violate, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or
result in the creation or imposition of any, security interest, mortgage, pledge, lien, charge, encumbrance, claim or equitable right upon any assets of the Company or any of its Bank Subsidiaries pursuant to, any of the Agreements and Instruments,
(ii) result in any violation of any provision of the charter, bylaws or other organizational document of the Company or any of its Bank Subsidiaries or (iii) result in any violation by the Company or any of its Bank Subsidiaries of any
applicable law, statute, rule, regulation, judgment, order, writ or decree of any Governmental Entity. As used herein, a “Repayment Event” means any event or condition that gives, or with the giving of notice or lapse of time would give,
the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of
its subsidiaries or any of their respective properties.
(u)
Absence of Labor Dispute
. No labor dispute with
the employees of the Company or any Bank Subsidiary exists or, to the knowledge of the senior management of the Company, is contemplated or threatened, which would reasonably be expected to have a Material Adverse Effect.
(v)
Compliance With ERISA
. Each of the Company, its subsidiaries and each ERISA Affiliate (as hereinafter
defined) has fulfilled its obligations, if any, under the minimum funding standards of Section 302 of the United States Employee Retirement Income Security Act of 1974, as amended (“ERISA”) with respect to each “pension
plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA, which the Company, its subsidiaries or any ERISA Affiliate sponsors or maintains, or with respect to which it has (or within the last three years had) any
obligation to make contributions, and each such plan is in compliance in all respects with the presently applicable provisions of ERISA and the Internal Revenue Code of 1986, as amended (the “Code”), except where such failure to fulfil its
obligations or such
non-compliance
would not result in a Material Adverse Effect. None of the Company, its subsidiaries or any ERISA Affiliate has incurred any unpaid liability to the Pension Benefit Guaranty
Corporation (other than for the payment of premiums in the ordinary course) or to any such plan under Title IV of ERISA, except where such unpaid liability would not result in a Material Adverse Effect. No prohibited transaction, within the meaning
of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any such 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 and its subsidiaries taken as a whole. “ERISA Affiliate” means a corporation, trade or business that is, along with the Company or any subsidiary, a member of a controlled group of corporations or a controlled
group of trades or businesses, as described in Section 414 of the Code or Section 4001 of ERISA.
(w)
Absence of Proceedings
. Except as disclosed in the Registration Statement, the Prospectus and the Disclosure
Package, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity, now pending, or, to the knowledge of the Company, threatened against or affecting the Company or any of its subsidiaries, which
(i) is required to be disclosed in the Registration Statement or the Prospectus; (ii) would reasonably be expected to have a Material Adverse Effect or (iii) would reasonably be expected to materially and adversely affect the
consummation of the transactions contemplated by this
9
Agreement, the other Operative Documents or the Securities or the performance by the Company of its obligations hereunder or thereunder. Except as described in the Registration Statement, the
Prospectus and the Disclosure Package, there are no legal or governmental proceedings to which the Company or any of its subsidiaries is a party or of which any of their respective assets is the subject, including ordinary routine litigation
incidental to the business, which would, in the aggregate, reasonably be expected to have a Material Adverse Effect.
(x)
Absence of Further Requirements
. No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any Governmental Entity, other than those that have been made or obtained, is necessary or required for the authority, execution, delivery or performance by the Company of its obligations under the Operative
Documents or the Securities, or the consummation by the Company of the transactions contemplated thereunder, except as may be required under state securities laws.
(y)
Possession of Licenses and Permits
. The Company and its subsidiaries possess such permits, licenses,
approvals, consents and other authorizations (collectively, “Governmental Licenses”) issued by the appropriate Governmental Entities that are necessary to conduct their respective businesses as described in the Registration Statement, the
Prospectus and the Disclosure Package, and have made all declarations and filings with the appropriate Governmental Entities that are necessary for the conduct of their respective businesses as described in the Registration Statement, the Prospectus
and the Disclosure Package, except where the failure to possess such Governmental Licenses or make such declarations or filings would not, individually or in the aggregate, have a Material Adverse Effect. The Company and its subsidiaries are in
compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, individually or in the aggregate, have a Material Adverse Effect. All of the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, individually or in the aggregate, have a Material Adverse Effect. None of the Company
or any of its subsidiaries has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, individually or in the aggregate, in the reasonable judgment of the Company, is reasonably expected
to have a Material Adverse Effect.
(z)
Conduct of Business
. Except as otherwise disclosed in the
Registration Statement, the Prospectus and the Disclosure Package, the Company and each Bank Subsidiary is conducting its business in compliance with all laws, rules, regulations, decisions, directives and orders, and all regulations and orders of,
or agreements with, Governmental Entities applicable to it, except where failure to so comply would not, individually or in the aggregate, in the reasonable judgment of the Company, be reasonably expected to have a Material Adverse Effect.
(aa)
Environmental Matters
. Each of the Company and its subsidiaries are in compliance with all applicable
federal, state and local laws, rules and regulations, and decisions and orders relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants, including, without
limitation, those applicable to emissions to the environment, waste management and waste disposal (collectively, the “Environmental Laws”), except where such noncompliance would not, individually or in the aggregate, have a Material
Adverse Effect, and, to the knowledge of the Company, there are no
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circumstances that would prevent, interfere with or materially increase the cost of such compliance in the future. There is no claim under any Environmental Law, including common law, pending or,
to the knowledge of the Company, threatened against the Company or any of its subsidiaries (an “Environmental Claim”), which would have a Material Adverse Effect, and, to the knowledge of the Company, under applicable law, there are no
past or present actions, activities, circumstances, events or incidents, including without limitation, releases of any material into the environment, that are reasonably likely to form the basis of any Environmental Claim against the Company or any
Bank Subsidiary which would, individually or in the aggregate, have a Material Adverse Effect.
(bb)
Title to
Property
. Each of the Company and its subsidiaries has good and marketable title in fee simple to all of its real and personal properties, reflected as owned in the consolidated financial statements or as described in the Prospectus, in each
case free and clear of all liens, encumbrances, claims and defects, except as do not materially interfere with the use made and proposed to be made of such property by the Company or such subsidiary or which would not, individually or in the
aggregate, have a Material Adverse Effect. All of the leases and subleases under which the Company or any of its subsidiaries holds properties used in its business are in full force and effect, except where the failure of such leases and subleases
to be in full force and effect and would not, individually or in the aggregate, have a Material Adverse Effect. None of the Company or any of its subsidiaries has any notice of any claim of any sort that has been asserted by anyone adverse to the
rights of the Company or any of its subsidiaries under any of the leases or subleases mentioned above, or affecting or questioning the rights of such entity to the continued possession of the leased or subleased premises under any such lease or
sublease, except any claim that would not, individually or in the aggregate, have a Material Adverse Effect.
(cc)
Intellectual Property
. Each of the Company and its subsidiaries owns or possesses all necessary and
adequate patents, patent rights, licenses, inventions, copyrights,
know-how
(including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property (collectively, “Intellectual Property”) presently employed by it in connection with the business now operated by it or reasonably necessary in order to conduct such
business, and none of the Company or any of its subsidiaries has received any notice or is otherwise aware of any infringement of or conflict with asserted rights of others with respect to any Intellectual Property or any facts or circumstances
which would render any Intellectual Property invalid or inadequate to protect the interest of the Company or any of its subsidiaries therein, except where the failure to possess such Intellectual Property or where such infringement or conflict (if
the subject of any unfavorable decision, ruling or finding) or invalidity or inadequacy, individually or in the aggregate, would not have a Material Adverse Effect.
(dd)
Taxes
. The Company and each Significant Subsidiary has, through the date hereof: (i) timely filed all
tax returns required to be filed and such returns are true correct and complete, and (ii) timely paid all federal, state, local and foreign taxes, except to the extent any such taxes are being contested in good faith and for which adequate
reserves have been made under GAAP, except where the failure to timely file such tax returns or to timely pay such taxes would not, individually or in the aggregate, result in a Material Adverse Effect. Giving effect to any applicable extensions and
except as otherwise disclosed in the Registration Statement, the
11
Prospectus and the Disclosure Package, there is no material tax deficiency that has been, or could reasonably be expected to be, asserted against the Company or any Bank Subsidiary or any of
their respective assets.
(ee)
Insurance
. The Company and each Bank Subsidiary have insurance covering their
respective assets, operations, personnel and businesses, including business interruption insurance, which insurance is in such amounts and insures against such losses and risks as are adequate to protect the Company and each Bank Subsidiary and
their respective assets, operations, personnel and businesses; and neither the Company nor any Bank Subsidiary has (i) received notice from any insurer or agent of such insurer that capital improvements or other expenditures are required or
necessary to be made in order to continue such insurance or (ii) any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage at reasonable cost from
similar insurers as may be necessary to continue its business.
(ff)
Payment of Dividends
. No subsidiary of
the Company is currently prohibited, directly or indirectly, from paying any dividends to the Company, from making any other distribution on such subsidiary’s capital stock, from transferring any of its property or assets to the Company or any
other subsidiary of the Company, or from repaying to the Company any loans or advances to such subsidiary from the Company, except as disclosed in the Registration Statement, the Prospectus and the Disclosure Package.
(gg)
Sarbanes-Oxley Act
. The Company and its directors and officers, in their capacities as such, are in
compliance in all material respects with all provisions of the Sarbanes-Oxley Act of 2002 and all rules and regulations promulgated thereunder or implementing the provisions thereof with which the Company or any of its directors or officers is
required to comply.
(hh)
Accounting Controls
. The Company and its subsidiaries maintain systems of 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 generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general 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) the interactive data in eXtensible Business Reporting
Language included or incorporated by reference in the Registration Statement fairly presents the information called for in all material respects and is prepared in accordance with the Commission’s rules and guidance applicable thereto. The
Company’s internal control over financial reporting is effective in all material respects, and since the date of the latest audited financial statements included in the Registration Statement, the Prospectus and the Disclosure Package,
(x) the Company is not aware of any material weaknesses in its internal controls, and (y) there has been no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to
materially affect, the Company’s internal control over financial reporting. The Company maintains disclosure controls and procedures (as such term is defined in Rule
13a-15(e)
of the 1934 Act Regulations)
that comply with the requirements of the 1934 Act; and such disclosure controls
12
and procedures have been designed to ensure that material information relating to the Company and its subsidiaries is made known to the Company’s principal executive officer and principal
financial officer by others within those entities; and such disclosure controls and procedures are effective.
(ii)
Foreign Corrupt Practices Act.
None of the Company or its subsidiaries or, to the knowledge of the Company,
any director, officer, employee or any agent or other person acting on behalf of the Company or any of its subsidiaries has, in the course of its actions for, or on behalf of, the Company or any of its subsidiaries (i) used any corporate funds
for any unlawful contribution, gift, entertainment or other unlawful expenses relating to political activity in violation of the U.S. Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (collectively, the
“FCPA”); (ii) made any direct or indirect unlawful payment to any domestic government official, “foreign official” (as defined in the FCPA) or employee from corporate funds; (iii) violated or is in violation of any provision
of the FCPA or any applicable
non-U.S.
anti-bribery statute or regulation; or (iv) made any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment to any domestic government
official, such foreign official or employee. The Company and its subsidiaries, and, to the knowledge of the Company and its subsidiaries, its and their other affiliates have conducted their businesses in compliance with the FCPA and have instituted
and maintain policies and procedures designed to ensure compliance therewith.
(jj)
Compliance with Money
Laundering Laws
. Except as otherwise disclosed in all material respects in the Registration Statement, the Prospectus and the Disclosure Package, the operations of the Company and its subsidiaries are and, to the knowledge of the Company and its
subsidiaries, 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
applicable 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 its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or its
subsidiaries, threatened.
(kk)
Compliance with OFAC
. Neither the Company nor any of its subsidiaries nor,
to the Company’s knowledge, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries or other person acting on their behalf is currently subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly use the proceeds of the Offering, 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 or business with any person, or in any country or territory, that currently is the subject to any U.S. sanctions administered by OFAC.
(ll)
No Brokers
. Other than the Underwriter, there is no broker, finder or other party that is entitled to
receive from the Company any brokerage or finder’s fee or other fee or commission as a result of any transactions contemplated by this Agreement.
13
(mm)
Stabilization.
Neither the Company nor any of its subsidiaries
has taken or will take, directly or indirectly, any action designed to, or that might be reasonably expected to, cause or result in stabilization or manipulation of the price of the Securities.
(nn)
Pending Proceedings and Examinations.
The Registration Statement is not the subject of a pending proceeding
or examination under Section 8(d) or 8(e) of the 1933 Act, and the Company is not the subject of a pending proceeding under Section 8A of the 1933 Act in connection with the offering of the Securities.
(oo)
Registration Rights.
There are no persons with registration rights or other similar rights to have any
securities of the Company or its subsidiaries registered by the Company or any other person under the 1933 Act.
(pp)
Statistical and Market Data.
Nothing has come to the attention of the Company that has caused the Company
to believe that the statistical and market-related data included in the Registration Statement, the Prospectus or the Disclosure Package is not based on or derived from sources that are reliable or is not accurate in all material respects.
(qq)
Forward-Looking Statements.
No forward-looking statement (within the meaning of Section 27A of the
1933 Act and Section 21E of the 1934 Act) contained in the Registration Statement, the Prospectus or the Disclosure Package has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
Any certificate signed by any duly authorized officer of the Company or any of its subsidiaries and delivered to the Underwriter or to counsel
for the Underwriter shall be deemed a representation and warranty by the Company or the applicable subsidiary, as the case may be, to the Underwriter as to the matters covered thereby.
SECTION 2.
Sale and Delivery to Underwriter; Closing
.
On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company
agrees to sell to the Underwriter, and the Underwriter agrees to purchase from the Company, the aggregate principal amount of Securities set forth opposite the name of the Underwriter on Schedule I hereto, at a purchase price equal to 99.115% of the
aggregate principal amount thereof.
Delivery of the Securities shall be made at the offices of Skadden, Arps, Slate, Meagher &
Flom LLP, Four Times Square, New York, New York 10036, or such other place as may be agreed to by the Underwriter and the Company, and payment of the purchase price for the Securities shall be made by the Underwriter to the Company by wire transfer
of immediately available funds contemporaneous with closing at such place as shall be agreed upon by the Underwriter and the Company, no later than 10:00 a.m., New York City time, on March 16, 2017 or such other time not later than ten
(10) business days after such date as shall be agreed upon by the Underwriter and the Company (such time and date of payment and delivery being herein called the “Closing Time”).
Payment for the Securities purchased by the Underwriter shall be made to the Company by wire transfer of immediately available funds to a bank
designated by the Company, against
14
delivery to the Underwriter for the respective accounts of the Underwriter of one or more global notes representing the Securities (collectively, the “Global Note”) to be purchased by
the Underwriter. The Securities represented by the Global Note shall be in such denominations and registered in such names as the Underwriter may request in writing at least two business days prior to the Closing Time. The Global Note shall be made
available for examination by the Underwriter not later than 4:55 p.m. New York City time, on the business day prior to the Closing Time.
In performing its duties under this Agreement, the Underwriter shall be entitled to rely upon any notice, signature or writing that the
Underwriter shall in good faith believe to be genuine and to be signed or presented by a proper party or parties. The Underwriter may rely upon any opinions or certificates or other documents delivered by the Company or its counsel or designees to
them.
SECTION 3.
Covenants of the Company
. The Company covenants with the Underwriter as follows:
(a)
Compliance
with
Securities
Regulations
and
Commission
Requests
.
Prior to the completion of the distribution of the Securities as contemplated in this Agreement (which the Underwriter will promptly confirm orally to the Company), the Company will notify the Underwriter promptly, and confirm the notice in writing,
(i) when any post-effective amendment to the Registration Statement or a new registration statement relating to the Securities shall become effective, or any amendment or supplement to the Prospectus or any amended Prospectus shall have been
filed, (ii) of the receipt of any comments with respect to the Registration Statement from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or the filing of a new registration statement
or any amendment or supplement to the Prospectus or any document incorporated therein by reference or otherwise deemed to be a part thereof or for additional information, (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or such new registration statement or of any order preventing or suspending the use of any preliminary prospectus or the Prospectus, or of the suspension of the qualification of the Securities for offering
or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the 1933 Act concerning the Registration Statement and (v) if the Company becomes the
subject of a proceeding under Section 8A of the 1933 Act. With respect to the Securities, subject to Section 3(e), the Company will comply with the requirements of Rule 430B, will prepare the Prospectus in the form approved by the Underwriter, will
effect the filings required under Rule 424(b) in the manner and within the time period specified therein (without reliance on Rule 424(b)(8)) and will take such steps as they deem necessary to ascertain promptly whether the Prospectus transmitted
for filing under Rule 424(b) under the 1933 Act Regulations was received for filing by the Commission and, in the event that it was not, it will promptly file such Prospectus. The Company will use its commercially reasonable efforts to prevent the
issuance of any stop order or other order and, if any stop order or other order is issued, to obtain the lifting thereof as soon as possible. The Company shall pay the required filing fees of the Commission relating to the Securities within the time
required by Rule 456(b)(1) (i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations.
15
(b)
Delivery
of
Registration
Statements
. The
Company has furnished to the Underwriter and counsel for the Underwriter, without charge, signed or conformed copies of the Registration Statement and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein
and documents incorporated or deemed to be incorporated by reference therein or otherwise deemed to be a part thereof) and signed or conformed copies of all consents and certificates of experts. The copies of the Registration Statement and each
amendment thereto furnished to the Underwriter will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation
S-T.
(c)
Delivery
of
Prospectuses
. The Company has delivered to the Underwriter, without charge,
as many copies of each preliminary prospectus as the Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to the Underwriter, without charge,
during the period when a prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as amended or supplemented) as the Underwriter may reasonably request, unless, with the prior consent of the Underwriter,
such delivery requirement can be satisfied by the provisions of Rule 172 of the 1933 Act Regulations. The Prospectus and any amendments or supplements thereto furnished to the Underwriter will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation
S-T.
(d)
Notice
and
Effect
of
Material
Events
. The Company will comply with the
1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations, the 1939 Act and the 1939 Act Regulations, as applicable, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the
Prospectus. Prior to the completion of the distribution of the Securities by the Underwriter, the Company will immediately notify the Underwriter, and confirm such notice in writing, of (x) any filing made by the Company of information relating
to the offering of the Securities with any securities exchange or any other regulatory body in the United States, and (y) any event or condition that results or is reasonably likely to result in a Material Adverse Change, which (i) makes
any statement in the Prospectus false or misleading or (ii) which is not disclosed in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall
occur as a result of which it is necessary, in the reasonable opinion of the Company, its counsel, the Underwriter or counsel to the Underwriter, to amend or supplement the Prospectus in order that the Prospectus not include any untrue statement of
a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to purchasers, or if for any other reason it shall be necessary,
in the reasonable opinion of the Company, its counsel, the Underwriter or counsel to the Underwriter, during such period to amend the Registration Statement or to file a new registration statement or to amend or supplement the Prospectus to comply
with the 1933 Act or the 1933 Act Regulations, the Company will forthwith amend the Registration Statement, file such registration statement and/or amend or supplement the Prospectus, subject to Section 3(e), so as to correct such untrue statement
or omission or effect such compliance, and the Company will furnish to the Underwriter such number of written and electronic copies of such amendment or supplement as the Underwriter may reasonably request. If at any time following the Applicable
Time or at any time following the issuance of an Issuer
16
Free Writing Prospectus, any event shall occur or condition shall exist as a result of which the Disclosure Package or such Issuer Free Writing Prospectus, individually or together with other
information that is part of the Disclosure Package, as the case may be, conflicted or would conflict with the information contained in the Registration Statement or any other registration statement relating to the Securities or included or would
include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Company
will promptly notify the Underwriter and will promptly amend or supplement, at the Company’s own expense, the Disclosure Package or such Issuer Free Writing Prospectus, as the case may be, to eliminate or correct such conflict, untrue statement
or omission.
(e)
Amendment
to
Prospectus
or
Registration
Statement
. The
Company will advise the Underwriter promptly of any notice of its intention to file or prepare any amendment to the Registration Statement or a new registration statement relating to the Securities or any amendment or supplement to any preliminary
prospectus or the Prospectus and will furnish the Underwriter with copies thereof a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document with respect to the Securities without
the consent of the Underwriter, which consent shall not be unreasonably withheld. Neither the consent of the Underwriter, nor the Underwriter’s delivery of any such amendment or supplement, shall constitute a waiver of any of the conditions set
forth in Section 5 hereof. For purposes of clarity, nothing in this Section 3(e) shall restrict the Company from making any filings required in order to comply with its reporting obligations under the 1934 Act or the 1934 Act Regulations.
(f)
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.
(g)
DTC
. The Company will cooperate with the Underwriter and use its commercially reasonable efforts to permit
the Securities to be eligible for clearance, settlement and trading through the facilities of DTC.
(h)
Blue
Sky
Compliance
. The Company will qualify the Securities for offer and sale under the state securities, or blue sky, laws of such jurisdictions as the Underwriter shall reasonably request and will continue such qualifications in effect
so long as required for the offering and resale of the Securities; provided that the Company shall not be required to qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where they would not
otherwise be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject themselves to taxation in any such jurisdiction if they are not otherwise so subject.
(i)
Further
Obligations
. In the event the Company, at any time, or from time to time, shall not have
sufficient funds to promptly pay in full any amount then due and payable to any person pursuant to this Agreement, the Company shall promptly take all such actions that do not require prior regulatory approval to obtain sufficient funds to pay such
amount and, if the funds obtained from such actions shall not be sufficient to pay such amount in full, the Company shall promptly take all such further actions, including obtaining all required regulatory approvals, to obtain sufficient additional
funds necessary to pay such amount in full.
17
(j)
Earnings
Statement.
The Company shall timely file such
reports pursuant to the 1934 Act, as applicable, as are necessary in order to make generally available to their respective securityholders as soon as practicable an earnings statement for the purposes of, and to provide the benefits contemplated by,
the last paragraph of Section 11(a) of the 1933 Act.
(k)
Reporting
Requirements
. The Company, during
the period when a prospectus is required to be delivered under the 1933 Act (including in circumstances where such requirement may be satisfied, with the prior consent of the Underwriter, by Rule 172 under the 1933 Act Regulations), will file all
documents required to be filed with the Commission by the Company pursuant to the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(l)
Use
of
Proceeds
. The Company will use the proceeds received by it from the sale of the
Securities as described in the Registration Statement, the Prospectus and the Disclosure Package.
(m)
Lock-Up
. During the
60-day
period after the date of the Prospectus, the Company will not, without the prior written consent of the Underwriter, directly or indirectly,
issue, sell, offer or agree to sell, grant any option for the sale of, or otherwise dispose of, the Securities, any security convertible into, exchangeable or exercisable for the Securities or any debt security substantially similar to the
Securities (except for the Securities issued pursuant to this Agreement).
(n)
Issuer
Free
Writing
Prospectuses.
The Company represents and agrees that, unless it obtains the prior written consent of the Underwriter, and the Underwriter represents and agrees that, unless it obtains the prior written consent of the Company,
it has not made and will not make any offer relating to the Securities that would constitute an “issuer free writing prospectus” (as defined in Rule 433) or that would otherwise constitute a “free writing prospectus” (as defined
in Rule 405) required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Underwriter is referred to herein as a “Permitted Free Writing Prospectus.” The Company represents that it has
treated, and agrees that it will treat, each Permitted Free Writing Prospectus as an “issuer free writing prospectus” (as defined in Rule 433(h)(i)) and have complied and will comply with the requirements of Rule 433 applicable to any
Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
Subject to
the consent of the Underwriter required in the immediately preceding paragraph, the Company will prepare a final term sheet relating solely to the final pricing terms of the Securities and will file such final term sheet within the period required
by Rule 433(d)(5)(ii) following the date such final terms have been established for such Securities. Any such final term sheet is an Issuer General Use Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement.
Notwithstanding anything to the contrary contained herein, the Company consents to the use by the Underwriter of a free writing prospectus that contains only (a) (i) information describing the preliminary terms of the
18
Securities generally or the Securities specifically or their offering or (ii) information that describes the final terms of the Securities or their offering and that is or is to be included
in the final term sheet of the Company contemplated in the first sentence of this paragraph or (b) other customary information that is not “issuer information,” as defined in Rule 433.
SECTION 4.
Payment of Expenses
.
(a)
Expenses
. The Company will pay all expenses incident to the performance of its obligations under this
Agreement, including (i) the preparation, printing and filing of the Registration Statement (including exhibits) and of each amendment thereto and the cost of obtaining all securities and bank regulatory approvals; (ii) the printing and
delivery to the Underwriter of copies of each preliminary prospectus, any Permitted Free Writing Prospectus and the Prospectus and any amendments or supplements thereto and any reasonable and documented costs associated with electronic delivery of
any of the foregoing by the Underwriter to investors; (iii) the costs of blue sky qualification (including fees and expenses of Skadden, Arps, Slate, Meagher & Flom LLP, blue sky counsel to the Underwriter, relating thereto up to a
maximum of $10,000) of the Securities in the various jurisdictions; (iv) the costs, fees and expenses incurred by the Underwriter in connection with determining their compliance with the rules and regulations of FINRA related to the
Underwriter’s participation in the offering and distribution of the Securities, including any related filing fees and reasonable legal fees of, and disbursements by, counsel to the Underwriter; (v) all fees and disbursements of the
Company’s counsel, accountants, agents and other advisors; (vi) the preparation, issuance and delivery of the certificates for the Securities; (vii) the fees and disbursements of the Trustee and its counsel; (viii) the costs and
expenses of the Company relating to investor presentations on any “road show” undertaken in connection with the marketing of the Securities, including, without limitation, expenses associated with the production of road show slides and
graphics, fees and expenses of any consultants engaged by, or with the consent of, the Company in connection with the road show presentations, travel and lodging expenses of the representatives and officers of the Company and any such consultants,
and the cost of aircraft and other transportation chartered in connection with the road show; and (ix) any fees payable in connection with the rating of the Securities. In the event the Underwriter incurs any such fees and expenses on behalf of
the Company, the Company will reimburse the Underwriter for such reasonable and documented fees and expenses whether or not the transactions contemplated hereby are consummated. It is understood, however, that, except as provided in this Section,
Sections 6, 9 and 10(c) hereof, the Underwriter will pay all of their own costs and expenses, including transfer taxes on resale of any of the Securities by them and the cost of preparing and distributing any term sheet prepared by the Underwriter.
(b)
Termination
. If this Agreement is terminated by the Underwriter in accordance with the provisions of
Sections 5(k) or Section 9(a)(i) hereof, the Company shall reimburse the Underwriter for all of their reasonable, actual and accountable
out-of-pocket
expenses,
including legal fees and expenses not to exceed $150,000, marketing, syndication and travel expenses.
19
SECTION 5.
Conditions of Underwriter
’
s
Obligations
. The obligations of the Underwriter hereunder are subject to the accuracy of the representations and warranties of the Company contained in Section 1 hereof or in certificates of any officer of the Company or any of its
subsidiaries delivered pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder required to be performed prior to Closing Time, and to the following further conditions:
(a)
Filing
of
Prospectus
. The Prospectus containing the Rule 430B Information shall have been
filed with the Commission in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with
the requirements of Rule 430B); all materials required to be filed by the Company pursuant to Rule 433(d) under the 1933 Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the
1933 Act. The Registration Statement is effective and no stop order or other order referred to in Section 3(a)(iv) hereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened; and all requests for
additional information on the part of the Commission shall have been complied with to the Underwriter’s satisfaction.
(b)
Opinion
of
Counsel
for
Company
. At the Closing Time, the Underwriter shall have
received the favorable opinions, each dated the Closing Time, of (A) Barley Snyder LLP, Pennsylvania counsel for the Company, in form and substance reasonably satisfactory to the Underwriter, and in substantially the form annexed hereto as
Annex A, (B) Daniel R. Stolzer, Executive Vice President and General Counsel of the Company, in form and substance reasonably satisfactory to the Underwriter and in substantially the form annexed hereto as Annex B, and
(C) Sullivan & Cromwell LLP, counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriter, and in substantially the form annexed hereto as Annex C. Each such counsel may state that, insofar as
its opinion involves factual matters, it has relied, to the extent it deems proper, upon certificates of officers of the Company or a Bank Subsidiary and public officials.
(c)
Opinion
of
Counsel
for
the
Underwriter
. At the Closing Time, the
Underwriter shall have received the favorable opinion, dated the Closing Time, of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Underwriter, with respect to such matters as the Underwriter may reasonably require. Such counsel
may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or a Bank Subsidiary and public officials.
(d)
Certificates
. At the Closing Time, there shall not have been, since the date hereof or since the respective
dates as of which information is given in the Prospectus or the Disclosure Package, any Material Adverse Effect, and the Underwriter shall have received a certificate of the Chief Executive Officer or the President of the Company and of the Chief
Financial Officer of the Company, dated the Closing Time, to the effect that (i) there has been no such Material Adverse Effect, (ii) the representations and warranties in Section 1 hereof were true and correct when made and are true
and correct with the same force and effect as though expressly made at and as of the Closing Time, and (iii) the Company has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the
Closing Time.
(e)
Independent
Auditors
’
Comfort
Letter
. At the time of the
execution of this Agreement, the Underwriter shall have received a letter from KPMG LLP, dated such date, in form and substance reasonably satisfactory to the Underwriter, containing statements and
20
information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and financial and accounting information
included in the Registration Statement, the Prospectus and the Disclosure Package.
(f)
Bring-down
Comfort
Letter
. At the Closing Time, the Underwriter shall have received from KPMG LLP a letter, dated the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of
this Section, except that the specified date referred to shall be a date not more than three business days prior to the Closing Time.
(g)
Ratings
. At the Closing Time, the Securities will be rated at least BBB+ by Fitch Ratings and Baa1 by
Moody’s Investor Service. Subsequent to the execution of this Agreement, there shall not have occurred a downgrading in or withdrawal of the rating assigned to the Securities or any other securities of the Company by any “nationally
recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the 1934 Act, and 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 the Securities or any other securities of the Company (other than an announcement with positive implications of a possible upgrading).
(h)
DTC
. At the Closing Time, the Securities shall be eligible for clearance, settlement and trading through the
facilities of DTC.
(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 Governmental Entity that would, as of the Closing Time, prevent the offer, 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 Time, prevent the issuance or sale of the Securities.
(j)
Additional
Documents
. At the Closing Time, counsel for the Underwriter shall have been furnished such
documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties of
the Company, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be reasonably satisfactory in form and
substance to the Underwriter and counsel for the Underwriter.
(k)
Termination
of
Agreement
.
If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Underwriter by notice to the Company at any time at or prior to the Closing Time, and such
termination shall be without liability of any party to any other party except as provided in Section 4 hereof and except that Sections 6 and 7 hereof shall survive any such termination and remain in full force and effect.
21
SECTION 6. Indemnification.
(a)
Indemnification
of
Underwriter
. The Company agrees to indemnify and hold harmless the
Underwriter, its affiliates (as such term is defined in Rule 405 of the 1933 Act Regulations), partners, directors, officers, employees and agents and each person, if any, who controls (within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act) the Underwriter (each such person, a “controlling person”):
(1) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of (A) any untrue statement or alleged untrue statement of a material fact included in the Registration Statement (or any amendment thereto) or the
omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading, (B) any untrue statement or alleged untrue statement of a material fact included in any
preliminary prospectus, the Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, or any amendment or supplement thereto, or the Company’s investor presentation on March 10, 2017, or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading,
(2) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged
untrue statement or omission; provided that (subject to Section 6(d) hereof) any such settlement is effected with the written consent of the Company; and
(3) against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by the
Underwriter), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (1) or (2) above;
provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of
any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by the Underwriter expressly for inclusion in the Prospectus (or any amendment or
supplement thereto) and the parties hereto agree that such information consists only of the following: (i) the concession and reallowance figures appearing in the first paragraph under the caption “Underwriting—Commission and
Expenses” and (ii) the information relating to stabilizing transactions, syndicate covering transactions and penalty bids in the second paragraph under the caption “Underwriting—Stabilization” in each of the preliminary
prospectus and the Prospectus (collectively, the “Underwriter’s Information”).
(b)
Indemnification
of
Company,
Directors
and
Officers.
The Underwriter
agrees to indemnify and hold harmless the Company, its directors, officers, employees and agents, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any
and all loss, liability, claim, damage and expense described in the indemnity contained in Section 6(a) above, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in conformity with
the Underwriter’s Information provided by the Underwriter.
22
(c)
Actions
against
Parties;
Notification
.
Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall
not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof, and in any event shall not relieve it from any liability which it may have otherwise than on account of this
indemnity agreement. An indemnifying party may participate at its own expense in the defense of any such action or, if it so elects within a reasonable time after receipt of such notice, to assume the defense of any suit brought to enforce any such
claim; but if it so elects to assume the defense, such defense shall be conducted by counsel chosen by it and approved by the indemnified parties, which approval shall not be unreasonably withheld. In the event that an indemnifying party elects to
assume the defense of any such suit and retain such counsel, the indemnified party or parties shall bear the fees and expenses of any additional counsel thereafter retained by such indemnified party or parties; provided, however, that the
indemnified party or parties shall have the right to employ counsel (in addition to local counsel) to represent the indemnified party or parties who may be subject to liability arising out of any action in respect of which indemnity may be sought
against the indemnifying party if, (i) the employment of such counsel shall have been authorized in writing by one of the indemnifying parties in connection with the defense of such action, (ii) the indemnifying parties shall not have
employed counsel to have charge of the defense of such action within a reasonable time after notice of commencement of the action, or (iii) in the reasonable judgment of counsel for the indemnified party or parties, there may be legal defenses
available to such indemnified person which are different from or in addition to those available to such indemnifying person, in which event the reasonable fees and expenses of appropriate separate counsel shall be borne by the indemnifying party. In
no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d)
Settlement
without
Consent
if
Failure
to
Reimburse
. If at any time
an indemnified party shall have validly requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(2) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the
terms of such
23
settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request
prior to the date of such settlement.
SECTION 7.
Contribution.
In order to provide for just and equitable
contribution in circumstances under which the indemnification provided for in Section 6 hereof is for any reason held to be unavailable to an indemnified party or insufficient in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company, on the one hand, and the Underwriter, on the other hand, from the offering of the Securities pursuant to this Agreement 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) above but also the relative fault of the Company, on the one hand, and the Underwriter, on the other hand, in
connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the Underwriter, on the other hand, in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Securities pursuant to this Agreement (before deducting expenses) received by the Company and the total
commission received by the Underwriter bears to the aggregate initial offering price of the Securities.
The relative fault of the
Company, on the one hand, and the Underwriter, on the other hand, shall be determined by reference to, among other things, whether any such untrue or alleged untrue statements of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or by the Underwriter and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriter agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined
by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by
an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, the Underwriter shall not be required to contribute any amount in excess of the amount
by which the total price at which such Securities were sold by it to the investors exceeds the amount of any damages which the Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission.
24
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this
Section 7, each person, if any, who controls the Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and the partners, directors, officers, employees and agents of the Underwriter or any such
controlling person shall have the same rights to contribution as the Underwriter, while each officer, employee, agent and director of the Company, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Company.
SECTION
8.
Representations, Warranties and Agreements to Survive Delivery
. All representations, warranties and agreements contained in this Agreement or in certificates of officers of the Company or its subsidiaries submitted
pursuant hereto shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of the Underwriter or controlling person, or by or on behalf of the Company, and shall survive delivery of the Securities to
the Underwriter.
SECTION 9.
Termination of Agreement
.
(a)
Termination;
General
. The Underwriter may terminate this Agreement, by notice to the Company, at any
time at or prior to the Closing Time if, since the time of execution of this Agreement or since the respective dates as of which information is given in the Disclosure Package or the Prospectus, (i) there has occurred any Material Adverse
Effect, or (ii) there has occurred any material adverse change in the financial markets in the United States, any outbreak of hostilities or escalation thereof or any other calamity or crisis, or any change or development involving a
prospective change in national political, financial or economic conditions, in each case the effect of which is such as to make it, in the reasonable judgment of the Underwriter, impracticable or inadvisable to proceed with the completion of the
offering of the Securities on the terms and in the manner contemplated in the Prospectus and the Disclosure Package or to enforce contracts for the sale of the Securities, or (iii) trading in any securities of the Company has been suspended or
limited by the Commission or by the NASDAQ Global Market, or if trading generally on the New York Stock Exchange or the NASDAQ Global Market has been suspended or limited, or minimum or maximum prices for trading have been fixed, or maximum ranges
for prices have been required, by any of said exchanges or by such system or by order of the Commission, FINRA or any other governmental authority, or (iv) a banking moratorium has been declared by the United States, New York, New Jersey or
Pennsylvania authorities or a material disruption has occurred in commercial banking or securities settlement and clearances services in the United States.
(b)
Liabilities
. If this Agreement is terminated pursuant to this Section, such termination shall be without
liability of any party to any other party except as provided in Section 4 hereof, and provided further that Sections 1, 6 and 7 hereof shall survive such termination and remain in full force and effect.
25
SECTION 10.
Notices
. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to the Underwriter shall be directed to Keefe, Bruyette & Woods, Inc., 787 Seventh Avenue, 4th
Floor, New York, New York 10019, fax no.: (212)
582-1592,
with a copy to Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, New York 10036, Attention: Michael J. Zeidel; and
notices to the Company shall be directed to it at P.O. Box 4887, Lancaster, Pennsylvania 17604, Attention: General Counsel, with a copy to Sullivan & Cromwell LLP, 125 Broad Street, New York, New York 10004, Attention: Catherine M. Clarkin.
SECTION 11.
Parties.
This Agreement shall inure to the benefit of and be binding upon the Underwriter, the
Company and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the Underwriter and the Company, and their respective successors and the
controlling persons and other persons referred to in Sections 1, 6 and 7 hereof and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the Underwriter and the Company and their respective successors, and said controlling persons and other persons and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No purchaser of Securities from the Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 12.
Counterparts; Facsimile
. This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, and signature pages may be delivered by facsimile, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
SECTION 13.
GOVERNING LAW; JURISDICTION
. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES OF SAID STATE OTHER THAN SECTION
5-1401
OF THE NEW YORK GENERAL OBLIGATIONS LAW.
THE COMPANY ON BEHALF OF ITSELF AND ITS SUBSIDIARIES HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL AND NEW YORK
STATE COURTS LOCATED IN THE CITY OF NEW YORK IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING RELATED TO THIS AGREEMENT OR ANY OF THE MATTERS CONTEMPLATED HEREBY, IRREVOCABLY WAIVES ANY DEFENSE OF LACK OF PERSONAL JURISDICTION AND IRREVOCABLY
AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT. THE COMPANY ON BEHALF OF ITSELF AND ITS SUBSIDIARIES IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
26
SECTION 14.
Effect of Headings
. The Article and Section headings
herein are for convenience only and shall not affect the construction hereof.
SECTION 15.
Nature of
Relationship
. The Company acknowledges and agrees that (a) the offering or purchase and sale of the Securities pursuant to this Agreement, including the determination of the terms of the Securities and the offering price thereof, is an
arm’s-length
commercial transaction between the Company, on the one hand, and the Underwriter, on the other hand, (b) in connection with the offering pursuant to this Agreement and the process leading to
such offering the Underwriter is and has been acting solely as a principal and not a fiduciary of the Company or its stockholders, creditors, employees or any other party, (c) the Underwriter has not assumed or will not assume an advisory or
fiduciary responsibility in favor of the Company with respect to the offering pursuant to this Agreement or the process leading thereto (irrespective of whether the Underwriter has advised or is currently advising the Company on other matters) and
the Underwriter does not have any obligation to the Company with respect to the offering pursuant to this Agreement except the obligations expressly set forth in this Agreement, (d) the Underwriter and its affiliates may be engaged in a broad
range of transactions that involve interests that differ from those of the Company and (e) the Underwriter has 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.
27
If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space below.
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Very truly yours,
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FULTON FINANCIAL CORPORATION
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By:
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/s/ Daniel R. Stolzer
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Name:
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Daniel R. Stolzer
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Title:
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Executive Vice President and
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General Counsel
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CONFIRMED AND ACCEPTED,
as of the
date first above written:
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KEEFE, BRUYETTE & WOODS, INC.
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By:
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/s/ Scott R. Anderson
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Name: Scott R. Anderson
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Title: Managing Director
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SCHEDULE I
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Name of Underwriter
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Aggregate Principal
Amount of
Securities to be Purchased
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Keefe, Bruyette & Woods, Inc.
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$
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125,000,000
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Total
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$
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125,000,000
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SCHEDULE II
$125,000,000
Fulton Financial Corporation
3.60% Senior Notes due 2022
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Issuer:
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Fulton Financial Corporation (the “Issuer”)
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Amount Offered:
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$125 million aggregate principal amount of 3.60% Senior Notes due 2022 (the “Securities”)
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Trade Date:
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March 13, 2017
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Settlement Date:
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March 16, 2017 (T+3)
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Maturity:
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March 16, 2022
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Coupon:
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3.60%
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Payment Dates:
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Each March 16 and September 16, commencing on September 16, 2017
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Day Count Convention:
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30 / 360
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Yield to Investors:
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3.685%
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Spread:
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+155 basis points versus UST 1.875% due February 28, 2022 (Strike Price:
98-25,
Strike Yield: 2.135%)
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Purchase Price (to Investors):
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99.615%, plus accrued interest, if any, from March 16, 2017
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Gross Spread:
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0.50%
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Price to Issuer:
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$123.9 million (99.115%), plus accrued interest, if any, from March 16, 2017
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Redemption:
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The notes are not subject to redemption or repayment prior to maturity
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Credit Rating:*
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[Intentionally omitted] (Fitch/Moody’s/DBRS)
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Ranking:
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The Securities will be unsecured and unsubordinated obligations of the Issuer and will rank equal in right of payment with all of the Issuer’s existing and future unsecured and unsubordinated obligations from time to time
outstanding and senior in right of payment to all of the Issuer’s existing and future unsecured and subordinated indebtedness. The Securities will be effectively subordinated to all of the Issuer’s future secured indebtedness to the extent
of the value of the assets securing such indebtedness. The Securities will be structurally subordinated to all of the existing and future liabilities and obligations of the Issuer’s subsidiaries, including the deposit liabilities and claims of
other creditors of the Issuer’s subsidiary banks
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Method of Distribution:
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SEC Registered, Shelf Takedown
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Listing:
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The Securities will not be listed on any securities exchange
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Sole Book-Running Manager:
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Keefe, Bruyette & Woods,
A
Stifel
Company
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CUSIP / ISIN:
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360271AK6 / US360271AK63
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The Issuer has filed a registration statement (including a prospectus) with the SEC for the offering to which this
communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the Issuer has filed with the SEC for more complete information about the Issuer and this offering. You may get these
documents for free by visiting EDGAR on the SEC Web site at
www.sec.gov
. Alternatively, the Issuer, the underwriter or any dealer participating in this offering will arrange to send you the prospectus if you request it by calling Keefe,
Bruyette & Woods,
A
Stifel
Company
toll-free at (800)
966-1559
.
This pricing term sheet does not constitute an offer to sell, or a solicitation of an offer to
buy any security in any state or jurisdiction in which
such offer, solicitation or sale would be unlawful.
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*
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An explanation of the significance of ratings may be obtained from the rating agencies. Generally, rating agencies base their ratings on such material and information, and such of their own investigations, studies and
assumptions, as they deem appropriate. The rating of the notes should be evaluated independently from similar ratings of other securities. A credit rating of a security is not a recommendation to buy, sell or hold securities and may be subject to
review, revision, suspension, reduction or withdrawal at any time by the assigning rating agency.
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SCHEDULE III
Bank Subsidiaries
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1.
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Fulton Bank, National Association
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2.
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Fulton Bank of New Jersey
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4.
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Lafayette Ambassador Bank
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5.
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FNB Bank, National Association
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6.
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Swineford National Bank
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ANNEX A
Pursuant to Section 5(b)(A) of the Agreement, Barley Snyder LLP, counsel for the Company, shall deliver an opinion in substantially the
following form. Capitalized terms not defined herein shall have the respective meanings ascribed to them in the Agreement.
Based solely
upon and subject to the foregoing, it is our opinion that:
(i) The Company is validly subsisting as
a corporation in good standing under the laws of the Commonwealth of Pennsylvania and has corporate power and authority to own, lease and operate its properties and assets and to conduct its business as described in the Registration Statement, the
Disclosure Package and the Prospectus, to enter into and perform its obligations under each of the Operative Documents and the Securities, and to issue the Securities.
(ii) Each of Fulton Bank, National Association, FNB Bank, National Association and Swineford National
Bank is validly existing as a national banking association in good standing under the National Bank Act, and has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration
Statement, the Disclosure Package and the Prospectus and, with respect to the Bank Subsidiaries, each is a member in good standing of its applicable Federal Home Loan Bank, the deposit accounts of each Bank Subsidiary are insured up to the
applicable limit by the FDIC, and, to our knowledge, no proceedings for the revocation or termination of such insurance are pending or threatened.
(iii) The Company is a “financial holding company” as such term is defined by the
Gramm-Leach-Bliley Act.
(iv) The Company is duly registered as a bank holding company under the the
Bank Holding Company Act of 1956, as amended.
(v) The issuance and sale by the Company of the
Securities as contemplated by the Agreement does not violate Regulation T, U or X of the Board of Governors of the Federal Reserve System.
(vi) The Company has full right, power and authority to execute and deliver the Operative Documents and
the Securities and to perform its obligations thereunder and all action required to be taken for the due and proper authorization, execution and delivery of each of the Operative Documents and the Securities and the consummation of the transactions
contemplated thereby has been duly and validly taken.
(vii) The Agreement has been duly authorized,
executed and delivered by the Company.
(viii) The Indenture has been duly authorized, executed and
delivered by the Company.
A-1
(ix) The Securities have been duly authorized, executed
and delivered by the Company.
(x) The execution, delivery and performance by the Company of the
Operative Documents and the Securities, the issuance, sale and delivery of the Securities, the consummation of the transactions contemplated by the Operative Documents and the Securities and compliance by the Company with the terms of the Operative
Documents and the Securities have been duly authorized by all necessary corporate action on the part of the Company, and do not and will not, whether with or without the giving of notice or passage of time or both, (i) result in any violation
of any provision of the charter, bylaws or other organizational document of the Company or any Bank Subsidiary or (ii) result in any violation by the Company or any Bank Subsidiary of any applicable law, statute, rule, regulation, or, to our
knowledge, judgment, order, writ or decree (including, without limitation, the Banking Regulations) of any state or federal government, governmental authority, agency or instrumentality or court, domestic or foreign (including, without limitation,
the Banking Regulators).
(xi) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any government, governmental authority, agency or instrumentality or court, domestic or foreign, other than those that have been made or obtained, is necessary or required for the authority, execution,
delivery or performance by the Company of its obligations under the Operative Documents or the Securities, as applicable, or the consummation by the Company of the transactions contemplated thereunder, except as may be required under state
securities laws, as to which we express no opinion.
(xii) To our knowledge, except as disclosed in
the Registration Statement, there is no action, suit, proceeding, inquiry or investigation before or brought by any court, government, governmental authority, agency or instrumentality or court, domestic or foreign, now pending or threatened against
or affecting the Company or any Bank Subsidiary that (i) is required to be disclosed in the Registration Statement, (ii) could, individually or in the aggregate, have a Material Adverse Effect or (iii) could materially and adversely
affect the consummation of the transactions contemplated by the Agreement, the other Operative Documents and the Securities or the performance by the Company of its obligations thereunder. Further, to our knowledge there are no legal or governmental
proceedings to which the Company or any Bank Subsidiary is a party or of which any of their respective assets is the subject, including ordinary routine litigation incidental to the business, which would, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
(xiii) The statements in the Company’s
10-K
for the fiscal year ended December 31, 2016 under the caption “Business-Supervision and Regulation,” to the extent that such statements constitute matters of law or legal conclusions or
descriptions of statutes, regulations, legal or governmental proceedings or contracts, have been reviewed by us and are accurate summaries in all material respects.
A-2
(xiv) The documents incorporated by reference in the
Prospectus of which we provided substantive review in connection with the filing thereof (other than the financial statements and supporting schedules included therein or omitted therefrom, as to which we need express no opinion), when they were
filed with the Commission, complied as to form in all material respects with the requirements of the 1934 Act and the 1934 Act Regulations.
We have acted as counsel to the Company on a regular basis (although the Company is also represented by its General Counsel and, with respect
to certain other matters, by other outside counsel), have acted as counsel to the Company in connection with previous financing transactions and have acted as Pennsylvania counsel to the Company in connection with the preparation of the Registration
Statement, the Prospectus and the Disclosure Package, and based on the foregoing, nothing has come to our attention that causes us to believe that:
(a) the Registration Statement or any amendment thereto (except for financial statements and schedules
and other financial data included or incorporated by reference therein or omitted therefrom and the Form
T-1,
as to which we make no statement), at the time the Registration Statement became effective on
July 30, 2014 or at each deemed effective date with respect to the Securities pursuant to Rule 430B(f)(2) of the 1933 Act Regulations, contained an untrue statement of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
(b) the Prospectus or any
amendment or supplement thereto (except for financial statements and schedules and other financial data included or incorporated by reference therein or omitted therefrom and the Form
T-1,
as to which we make
no statement), at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits 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; or
(c) the Disclosure Package (except for the financial statements and schedules and other financial data
included or incorporated by reference therein or omitted therefrom, as to which we make no statement), as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the
statements therein, in the light of circumstances under which they were made, not misleading.
A-3
ANNEX B
Pursuant to Section 5(b)(B) of the Agreement, Daniel R. Stolzer, Executive Vice President and General Counsel of the Company, shall deliver an opinion in
substantially the following form. Capitalized terms not defined herein shall have the respective meanings ascribed to them in the Agreement.
(a)
Capital Stock Duly Authorized and Validly Issued
. To my knowledge, (i) all of the issued and
outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable; (ii) all of the issued and outstanding shares of capital stock of each Bank Subsidiary have been duly
authorized and validly issued, are fully paid and nonassessable and are owned of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equitable right; and (iii) none of the issued and
outstanding shares of capital stock of the Company or any Bank Subsidiary were issued in violation of any preemptive or similar rights of any shareholder of the Company or any Bank Subsidiary, as the case may be, arising by operation of law, or
under the certificate of incorporation, bylaws or other organizational documents of the Company or any Bank Subsidiary or under any agreement to which the Company or any Bank Subsidiary is a party.
(b)
Capitalization
. The authorized, and to my knowledge, issued and outstanding capital stock and consolidated
long term debt (i.e., a maturity of greater than one year) of the Company as of December 31, 2016 is as set forth in the Disclosure Package and the Prospectus under “Capitalization”; there have not been any subsequent issuances of
capital stock of the Company (except issuances of common stock pursuant to exercises of employee stock options and pursuant to the Company’s dividend reinvestment plan and employee stock purchase plan); and there has not been any additional
long term borrowings by the Company or its consolidated subsidiaries since such date, except, with respect to the Bank Subsidiaries, pursuant to Federal Home Loan Bank advances, securities sold under agreements to repurchase incurred by the Bank
Subsidiaries in their ordinary course of business or obligations among entities within the Company’s consolidated group.
(c)
Absence of Defaults
. To my knowledge, neither the Company nor any Bank Subsidiary is (i) in violation
of its charter, bylaws or other organizational document, (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any Agreement or Instrument or (iii) in violation of any applicable
law, statute, rule, regulation, judgment, order, writ or decree of any state or federal government, governmental authority, agency or instrumentality or court, domestic or foreign, except, in the case of clauses (i), (ii) and (iii) above, for
any such default or violation that would not, individually or in the aggregate, have a Material Adverse Effect.
(d)
Absence of Conflicts.
The execution, delivery and performance by the Company of the Operative Documents and
the Securities, the issuance, sale and delivery of the Securities, the consummation of the transactions contemplated by the Operative Documents and the Securities and compliance by the Company with the terms of the Operative Documents and the
Securities have been duly authorized by all necessary corporate action on the part of the Company and do not and will not, whether with or without the giving of notice or passage of time or both, result in any violation of any provision of the
charter, bylaws or other organizational document of the Company or any Bank Subsidiary.
B-1
(e)
Governmental Licenses
. To my knowledge, each of the Company and
its Bank Subsidiaries possesses such permits, licenses, approvals, consents and other authorizations (collectively, “Governmental Licenses”) issued by the appropriate federal or state governmental or regulatory authorities necessary to
conduct the business now operated by it, and have made the declarations and filings with the appropriate federal and state governmental or regulatory authorities that are necessary for the conduct of its businesses as described in the Prospectus,
except where the failure to possess such Governmental Licenses or make such declarations or filings would not, singularly or in the aggregate, have a Material Adverse Effect.
(f)
Bank Subsidiaries
. Each Bank Subsidiary of the Company is validly existing as a bank and subsisting under
the laws of its jurisdiction of organization, formation or association, as the case may be, and has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Disclosure Package and the
Prospectus.
To render these opinions, I have made such investigation of law and fact as I deemed necessary. I have not independently
verified information obtained from third persons, except as set forth herein. As used in this opinion, the expression “to my knowledge” is based solely upon: (i) my personal knowledge, including knowledge gained through inquiries by
me or of others working under my direction in the Company’s Legal Department of representatives of the Company; (ii) the facts stated in the representations and warranties of the Company contained in the Agreement executed by the Executive
Vice President and General Counsel and oral and written representations to me of other officers of the Company (including the representations in the Certificate delivered to Barley Snyder LLP and referenced in the opinion of that firm delivered on
the date of this letter).
B-2
ANNEX C
Pursuant to Section 5(b)(C) of the Agreement, Sullivan & Cromwell LLP, counsel for the Company, shall deliver opinions in substantially the following
form. Capitalized terms not defined herein shall have the respective meanings ascribed to them in the Agreement.
(a) Assuming the Indenture has been duly authorized, executed and delivered by the Company, the Indenture constitutes a
valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating
to or affecting creditors’ rights and to general equity principles.
(b) Assuming the Securities have been
duly authorized and executed by the Company, and when authenticated in accordance with the Indenture and issued and sold as contemplated in the Prospectus, the Securities will constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general
equity principles.
(c) The Indenture has been duly qualified under the Trust Indenture Act of 1939.
(d) All regulatory consents, authorizations, approvals and filings required to be obtained or made by the Company under
the Bank Holding Company Act of 1956, as amended, for the execution and delivery by the Company of, and the performance by the Company of its obligations under, the Underwriting Agreement, the Indenture and the Securities have been obtained or made;
provided
,
however
, that insofar as performance by the Company of its obligations under the Underwriting Agreement, the Indenture and the Securities is concerned, we express no opinion as to bankruptcy, insolvency, reorganization,
moratorium and similar laws of general applicability relating to or affecting creditors’ rights.
(e) All
regulatory consents, authorizations, approvals and filings required to be obtained or made by the Company under the Other Covered Laws
1
for the execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Underwriting Agreement, the Indenture and the Securities have been obtained or made.
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1
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“
Other Covered Laws
” means the federal laws of the United States and the laws of the State of New York (including the published rules or regulations thereunder) that in our experience normally are
applicable to general business corporations and transactions such as those contemplated by the Underwriting Agreement, the Indenture and the Securities;
provided
,
however
, that such term does not include federal or state securities
laws, other antifraud laws and fraudulent transfer laws, tax laws, the Employee Retirement Income Security Act of 1974, antitrust laws or, except as set forth above, any law that is applicable to the Company, its affiliates, the Underwriting
Agreement, the Indenture, the Securities or the transactions contemplated thereby solely as part of a regulatory regime applicable to the Company or its affiliates due to its or their status, business or assets.
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C-1
(f) The execution and delivery by the Company of, and the performance by
the Company of its obligations under, the Underwriting Agreement, the Indenture and the Securities will not violate the Bank Holding Company Act of 1956, as amended;
provided,
however
, that we express no opinion with respect to
provisions of the Bank Holding Company Act of 1956, as amended, as to safety and soundness or unsafe and unsound practices and other requirements of a prudential nature that are set forth therein;
provided
further
, that insofar as
performance by the Company of its obligations under the Underwriting Agreement, the Indenture and the Securities is concerned, we express no opinion as to bankruptcy, insolvency, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors’ rights.
(g) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Underwriting Agreement, the Indenture and the Securities will not violate any Other Covered Laws.
(h) The execution and delivery by the Company of the Underwriting Agreement, the Indenture and the Securities does not,
and the performance by the Company of its obligations under the Underwriting Agreement, the Indenture and the Securities will not, result in a default under or breach or violation of the agreements or other outstanding instruments to which the
Company is a party identified in Annex A as exhibits to the Company’s Annual Report on Form
10-K
for the fiscal year ended December 31, 2016.
(i) The Company is not, and immediately after giving effect to the offering and sale of the Securities and the
application of the net proceeds thereof, will not be, an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
We are expressing no opinion in paragraphs (e) and (g) above, insofar as performance by the Company of its obligations under the Underwriting Agreement,
the Indenture and the Securities is concerned, as to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights.
C-2
The Registration Statement relating to the Securities (File
No. 333-197730)
was filed on
Form S-3
in accordance with procedures of the Securities and Exchange Commission (the “
Commission
”) permitting a
delayed or continuous offering of securities pursuant thereto and, if appropriate, a post-effective amendment, document incorporated by reference therein or prospectus supplement that provides information relating to the terms of the securities and
the manner of their distribution. The Securities have been offered by the Prospectus, dated July 30, 2014 (the “
Basic
Prospectus
”), as supplemented by the Prospectus Supplement, dated March 13, 2017 (the
“
Prospectus
Supplement
”), which updates or supplements certain information contained in the Basic Prospectus. The Basic Prospectus, as supplemented by the Prospectus Supplement, does not necessarily contain a current
description of the Company’s business and affairs since, pursuant to
Form S-3,
it incorporates by reference certain documents filed with the Commission that contain information as of various dates.
As counsel to the Company, we reviewed the Registration Statement, the Basic Prospectus, the Prospectus Supplement and the documents
listed in Schedule A (those listed documents, together with the Basic Prospectus, being referred to herein as the “
Pricing
Disclosure
Package
”) and participated in discussions with your representatives and those of the
Company and its accountants. Between the date of the Prospectus Supplement and the time of delivery of this letter, we participated in further discussions with your representatives and those of the Company and its accountants concerning certain
matters relating to the Company and reviewed certificates of certain officers of the Company and letters addressed to you from the Company’s accountants and opinions addressed to you from the Executive Vice President and General Counsel of the
Company and Barley Snyder LLP, Pennsylvania counsel to the Company. On the basis of the information that we gained in the course of the performance of the services referred to above, considered in the light of our understanding of the applicable law
(including the requirements of
Form S-3
and the character of prospectus contemplated thereby) and the experience we have gained through our practice under the Securities Act, we confirm to you that, in
our opinion, the Registration Statement, as of the date of the Prospectus Supplement, and the Basic Prospectus, as supplemented by the Prospectus Supplement, as of the date of the Prospectus Supplement, appeared on their face to be appropriately
responsive, in all material respects relevant to the offering of the Securities, to the requirements of the Securities Act of 1933 and the applicable rules and regulations of the Commission thereunder. Also, we confirm to you that the statements
contained in the Prospectus Supplement and the Pricing Disclosure Package under the caption “Description of Senior Notes” insofar as they relate to provisions of the Securities and the Indenture under which the Securities are being issued,
under the caption “Underwriting” insofar as they relate to provisions of the Underwriting Agreement, and under the caption “Material Federal Income Tax Consequences” and “Certain ERISA Considerations,” insofar as they
purport to constitute a summary of matters of U.S. federal income tax law or U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute a fair and accurate summary of such
provisions in all material respects.
Further, nothing that came to our attention in the course of such review has caused us to believe
that, insofar as relevant to the offering of the Securities,
C-4
(a) the Registration Statement, as of the date of the Prospectus
Supplement, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or
(b) the Pricing Disclosure Package, as of 4:00 p.m., New York City time, on March 13, 2017 (which you have
informed us is prior to the time of the first sale of the Securities by the Underwriter), contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or
(c) the Basic Prospectus, as supplemented by the
Prospectus Supplement, as of the date of the Prospectus Supplement, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
We also advise you that nothing that came to our attention in the course of the procedures
described in the second sentence of the preceding paragraph has caused us to believe that the Basic Prospectus, as supplemented by the Prospectus Supplement, or the Pricing Disclosure Package, as of the time of delivery of this letter, contained any
untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
The limitations inherent in the independent verification of factual matters and the character of determinations involved in the registration
process are such, however, that we do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Pricing Disclosure
Package, except to the extent specifically noted in the fourth sentence of the second preceding paragraph. Also, we do not express any opinion or belief as to the financial statements or other financial data derived from accounting records contained
in the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Pricing Disclosure Package, or as to management’s report of its assessment of the effectiveness of the Company’s internal control over financial
reporting or the auditors’ report as to the Company’s internal control over financial reporting, each as included in the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Pricing Disclosure Package, or as to
the statement of the eligibility of the trustee under the Indenture under which the Securities are being issued.
C-4
Exhibit 4.1
FULTON FINANCIAL CORPORATION
TO
WILMINGTON TRUST, NATIONAL ASSOCIATION,
As Trustee
Indenture
Dated
as of March 16, 2017
Senior Debt Securities
TABLE OF CONTENTS
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P
AGE
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P
ARTIES
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1
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R
ECITALS
OF
THE
C
ORPORATION
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1
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ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
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1
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SECTION 101.
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Definitions
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1
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Act
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2
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Affiliate; control
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2
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Agent Member
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2
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Applicable Procedures
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2
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Authenticating Agent
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2
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Board of Directors
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2
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Board Resolution
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2
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Business Day
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2
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Commission
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3
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corporation
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3
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Corporation
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3
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Corporation Request; Corporation Order
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3
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Corporate Trust Office
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3
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Covenant Defeasance
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3
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Defaulted Interest
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3
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Defeasance
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3
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Depositary
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3
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Event of Default
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3
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Exchange Act
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3
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Expiration Date
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3
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Global Security
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3
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Holder
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4
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Indenture
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4
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interest
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4
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Interest Payment Date
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4
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Investment Company Act
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4
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Maturity
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4
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Notice of Default
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4
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Officers’ Certificate
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4
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Opinion of Counsel
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4
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Original Issue Discount Security
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4
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Outstanding
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5
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Paying Agent
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6
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N
OTE
: This Table of Contents shall not, for any purpose, be deemed to be a part of the Indenture.
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P
AGE
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Person
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6
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Place of Payment
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6
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Predecessor Security
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6
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Redemption Date
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6
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Redemption Price
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6
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Regular Record Date
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6
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Responsible Officer
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6
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Securities
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7
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Securities Act
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7
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Security Register; Security Registrar
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7
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Special Record Date
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7
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Stated Maturity
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7
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Subsidiary
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7
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Trust Indenture Act
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7
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Trustee
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7
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U.S. Government Obligation
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7
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Vice President
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7
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SECTION 102.
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Compliance Certificates and Opinions
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7
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SECTION 103.
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Form of Documents Delivered to Trustee
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8
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SECTION 104.
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Acts of Holders; Record Dates
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9
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SECTION 105.
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Notices, Etc., to Trustee and Corporation.
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11
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SECTION 106.
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Notice to Holders; Waiver.
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12
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SECTION 107.
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Conflict with Trust Indenture Act.
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12
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SECTION 108.
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Effect of Headings and Table of Contents.
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13
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SECTION 109.
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Successors and Assigns
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13
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SECTION 110.
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Separability Clause.
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13
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SECTION 111.
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Benefits of Indenture
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13
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SECTION 112.
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Governing Law.
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13
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SECTION 113.
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Legal Holidays.
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13
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SECTION 114.
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Force Majeure.
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14
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SECTION 115.
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Execution in Counterparts
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14
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SECTION 116.
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Waiver of Jury Trial.
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14
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SECTION 117.
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U.S.A. PATRIOT Act
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14
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ARTICLE TWO SECURITY FORMS
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15
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SECTION 201.
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Forms Generally
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15
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SECTION 202.
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Form of Face of Security.
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15
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SECTION 203.
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Form of Reverse of Security.
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17
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SECTION 204.
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Form of Legend for Global Securities.
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21
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SECTION 205.
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Form of Trustee’s Certificate of Authentication.
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22
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ARTICLE THREE THE SECURITIES
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22
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SECTION 301.
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Amount Unlimited; Issuable in Series.
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22
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SECTION 302.
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Denominations.
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24
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SECTION 303.
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Execution, Authentication, Delivery and Dating.
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25
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SECTION 304.
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Temporary Securities.
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26
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SECTION 305.
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Registration, Registration of Transfer and Exchange.
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27
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SECTION 306.
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Mutilated, Destroyed, Lost and Stolen Securities.
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29
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ii
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P
AGE
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SECTION 307.
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Payment of Interest; Interest Rights Preserved.
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30
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SECTION 308.
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Persons Deemed Owners.
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31
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SECTION 309.
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Cancellation.
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32
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SECTION 310.
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Computation of Interest.
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32
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SECTION 311.
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CUSIP Numbers
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32
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ARTICLE FOUR SATISFACTION AND DISCHARGE
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32
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SECTION 401.
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Satisfaction and Discharge of Indenture.
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32
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SECTION 402.
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Application of Trust Money
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34
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ARTICLE FIVE REMEDIES
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34
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SECTION 501.
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Events of Default.
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34
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SECTION 502.
|
|
Acceleration of Maturity; Rescission and Annulment.
|
|
|
36
|
|
|
SECTION 503.
|
|
Collection of Indebtedness and Suits for Enforcement by Trustee.
|
|
|
37
|
|
|
SECTION 504.
|
|
Trustee May File Proofs of Claim
|
|
|
38
|
|
|
SECTION 505.
|
|
Trustee May Enforce Claims Without Possession of Securities.
|
|
|
38
|
|
|
SECTION 506.
|
|
Application of Money Collected
|
|
|
38
|
|
|
SECTION 507.
|
|
Limitation on Suits
|
|
|
39
|
|
|
SECTION 508.
|
|
Unconditional Right of Holders to Receive Principal, Premium and Interest
|
|
|
40
|
|
|
SECTION 509.
|
|
Restoration of Rights and Remedies.
|
|
|
40
|
|
|
SECTION 510.
|
|
Rights and Remedies Cumulative.
|
|
|
40
|
|
|
SECTION 511.
|
|
Delay or Omission Not Waiver
|
|
|
40
|
|
|
SECTION 512.
|
|
Control by Holders
|
|
|
40
|
|
|
SECTION 513.
|
|
Waiver of Past Defaults.
|
|
|
41
|
|
|
SECTION 514.
|
|
Undertaking for Costs.
|
|
|
41
|
|
|
SECTION 515.
|
|
Waiver of Usury, Stay or Extension Laws
|
|
|
42
|
|
|
|
|
|
ARTICLE SIX THE TRUSTEE
|
|
|
42
|
|
|
|
|
|
|
SECTION 601.
|
|
Certain Duties and Responsibilities.
|
|
|
42
|
|
|
SECTION 602.
|
|
Notice of Defaults.
|
|
|
43
|
|
|
SECTION 603.
|
|
Certain Rights of Trustee.
|
|
|
43
|
|
|
SECTION 604.
|
|
Trustee Not Responsible for Recitals or Issuance of Securities.
|
|
|
45
|
|
|
SECTION 605.
|
|
May Hold Securities
|
|
|
45
|
|
|
SECTION 606.
|
|
Money Held in Trust.
|
|
|
46
|
|
|
SECTION 607.
|
|
Compensation and Reimbursement
|
|
|
46
|
|
|
SECTION 608.
|
|
Conflicting Interests.
|
|
|
47
|
|
|
SECTION 609.
|
|
Corporate Trustee Required; Eligibility
|
|
|
47
|
|
|
SECTION 610.
|
|
Resignation and Removal; Appointment of Successor.
|
|
|
47
|
|
|
SECTION 611.
|
|
Acceptance of Appointment by Successor
|
|
|
49
|
|
|
SECTION 612.
|
|
Merger, Conversion, Consolidation or Succession to Business
|
|
|
50
|
|
|
SECTION 613.
|
|
Preferential Collection of Claims Against Corporation.
|
|
|
50
|
|
|
SECTION 614.
|
|
Appointment of Authenticating Agent
|
|
|
50
|
|
iii
|
|
|
|
|
|
|
|
|
|
|
|
|
P
AGE
|
|
|
|
|
|
ARTICLE SEVEN HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND CORPORATION
|
|
|
51
|
|
|
|
|
|
|
SECTION 701.
|
|
Corporation to Furnish Trustee Names and Addresses of Holders.
|
|
|
51
|
|
|
SECTION 702.
|
|
Preservation of Information; Communications to Holders.
|
|
|
52
|
|
|
SECTION 703.
|
|
Reports by Trustee.
|
|
|
52
|
|
|
SECTION 704.
|
|
Reports by Corporation.
|
|
|
52
|
|
|
|
|
|
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
|
|
|
53
|
|
|
|
|
|
|
SECTION 801.
|
|
Corporation May Consolidate, Etc., Only on Certain Terms
|
|
|
53
|
|
|
SECTION 802.
|
|
Successor Substituted
|
|
|
54
|
|
|
|
|
|
ARTICLE NINE SUPPLEMENTAL INDENTURES
|
|
|
54
|
|
|
|
|
|
|
SECTION 901.
|
|
Supplemental Indentures Without Consent of Holders
|
|
|
54
|
|
|
SECTION 902.
|
|
Supplemental Indentures With Consent of Holders
|
|
|
55
|
|
|
SECTION 903.
|
|
Execution of Supplemental Indentures.
|
|
|
56
|
|
|
SECTION 904.
|
|
Effect of Supplemental Indentures
|
|
|
57
|
|
|
SECTION 905.
|
|
Conformity with Trust Indenture Act.
|
|
|
57
|
|
|
SECTION 906.
|
|
Reference in Securities to Supplemental Indentures
|
|
|
57
|
|
|
|
|
|
ARTICLE TEN COVENANTS
|
|
|
57
|
|
|
|
|
|
|
SECTION 1001.
|
|
Payment of Principal, Premium and Interest
|
|
|
57
|
|
|
SECTION 1002.
|
|
Maintenance of Office or Agency
|
|
|
57
|
|
|
SECTION 1003.
|
|
Money for Securities Payments to Be Held in Trust
|
|
|
58
|
|
|
SECTION 1004.
|
|
Statement by Officers as to Default.
|
|
|
59
|
|
|
SECTION 1005.
|
|
Existence.
|
|
|
60
|
|
|
SECTION 1006.
|
|
Maintenance of Properties.
|
|
|
60
|
|
|
SECTION 1007.
|
|
Payment of Taxes and Other Claims
|
|
|
60
|
|
|
SECTION 1008.
|
|
Waiver of Certain Covenants.
|
|
|
60
|
|
|
SECTION 1009.
|
|
Calculation of Original Issue Discount.
|
|
|
61
|
|
|
|
|
|
ARTICLE ELEVEN REDEMPTION OF SECURITIES
|
|
|
61
|
|
|
|
|
|
|
SECTION 1101.
|
|
Applicability of Article.
|
|
|
61
|
|
|
SECTION 1102.
|
|
Election to Redeem; Notice to Trustee.
|
|
|
61
|
|
|
SECTION 1103.
|
|
Selection by Trustee of Securities to Be Redeemed.
|
|
|
62
|
|
|
SECTION 1104.
|
|
Notice of Redemption.
|
|
|
62
|
|
|
SECTION 1105.
|
|
Deposit of Redemption Price.
|
|
|
63
|
|
|
SECTION 1106.
|
|
Securities Payable on Redemption Date.
|
|
|
63
|
|
|
SECTION 1107.
|
|
Securities Redeemed in Part.
|
|
|
64
|
|
|
|
|
|
ARTICLE TWELVE SINKING FUNDS
|
|
|
64
|
|
|
|
|
|
|
SECTION 1201.
|
|
Applicability of Article.
|
|
|
64
|
|
|
SECTION 1202.
|
|
Satisfaction of Sinking Fund Payments with Securities
|
|
|
64
|
|
|
SECTION 1203.
|
|
Redemption of Securities for Sinking Fund
|
|
|
65
|
|
iv
|
|
|
|
|
|
|
|
|
|
|
|
|
P
AGE
|
|
|
ARTICLE THIRTEEN DEFEASANCE AND COVENANT DEFEASANCE
|
|
|
66
|
|
|
|
|
|
|
SECTION 1301.
|
|
Corporation’s Option to Effect Defeasance or Covenant Defeasance
|
|
|
66
|
|
|
SECTION 1302.
|
|
Defeasance and Discharge.
|
|
|
66
|
|
|
SECTION 1303.
|
|
Covenant Defeasance.
|
|
|
67
|
|
|
SECTION 1304.
|
|
Conditions to Defeasance or Covenant Defeasance
|
|
|
67
|
|
|
SECTION 1305.
|
|
Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous
Provisions
|
|
|
69
|
|
|
SECTION 1306.
|
|
Reinstatement
|
|
|
70
|
|
v
Certain Sections of this Indenture relating to Sections 310 through 318,
inclusive, of the Trust Indenture Act of 1939:
|
|
|
|
|
|
|
Trust
Indenture
Act
Section
|
|
|
|
Indenture Section
|
|
§ 310(a)(1)
|
|
|
|
609
|
|
(a)(2)
|
|
|
|
609
|
|
(a)(3)
|
|
|
|
Not Applicable
|
|
(a)(4)
|
|
|
|
Not Applicable
|
|
(b)
|
|
|
|
608
|
|
|
|
|
|
610
|
|
§ 311(a)
|
|
|
|
613
|
|
(b)
|
|
|
|
613
|
|
§ 312(a)
|
|
|
|
701
|
|
|
|
|
|
702
|
|
(b)
|
|
|
|
702
|
|
(c)
|
|
|
|
702
|
|
§ 313(a)
|
|
|
|
703
|
|
(b)
|
|
|
|
703
|
|
(c)
|
|
|
|
703
|
|
(d)
|
|
|
|
703
|
|
§ 314(a)
|
|
|
|
704
|
|
(a)(4)
|
|
|
|
101
|
|
|
|
|
|
1004
|
|
(b)
|
|
|
|
Not Applicable
|
|
(c)(1)
|
|
|
|
102
|
|
(c)(2)
|
|
|
|
102
|
|
(c)(3)
|
|
|
|
Not Applicable
|
|
(d)
|
|
|
|
Not Applicable
|
|
(e)
|
|
|
|
102
|
|
§ 315(a)
|
|
|
|
601
|
|
(b)
|
|
|
|
602
|
|
(c)
|
|
|
|
601
|
|
(d)
|
|
|
|
601
|
|
(e)
|
|
|
|
514
|
|
§ 316(a)
|
|
|
|
101
|
|
(a)(1)(A)
|
|
|
|
502
|
|
|
|
|
|
512
|
|
(a)(1)(B)
|
|
|
|
513
|
|
(a)(2)
|
|
|
|
Not Applicable
|
|
(b)
|
|
|
|
508
|
|
(c)
|
|
|
|
104
|
|
§ 317(a)(1)
|
|
|
|
503
|
|
(a)(2)
|
|
|
|
504
|
|
(b)
|
|
|
|
1003
|
|
§ 318(a)
|
|
|
|
107
|
N
OTE
: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.
INDENTURE, dated as of March 16, 2017, between Fulton Financial Corporation, a corporation
duly organized and existing under the laws of the Commonwealth of Pennsylvania (herein called the “Corporation”), having its principal office at One Penn Square, P.O. Box 4887, Lancaster, Pennsylvania 17604, and Wilmington Trust, National
Association, a national banking association organized and existing under the laws of the United States of America, as Trustee (herein called the “Trustee”).
R
ECITALS
OF
THE
C
ORPORATION
W
HEREAS
, the Corporation has duly authorized the execution and delivery of this Indenture to provide for the issuance from time
to time of its senior debt securities (herein called the “Securities”), to be issued in one or more series as in this Indenture provided; and
W
HEREAS
, all things necessary to make this Indenture a valid agreement of the Corporation, in accordance with its terms, have
been done.
N
OW
, T
HEREFORE
, T
HIS
I
NDENTURE
W
ITNESSETH
:
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as follows:
ARTICLE ONE
D
EFINITIONS
AND
O
THER
P
ROVISIONS
OF
G
ENERAL
A
PPLICATION
SECTION 101.
Definitions
.
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in this Article and include the
plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance
with generally accepted accounting principles;
(4) unless the context otherwise requires, any
reference to an “Article” or a “Section” refers to an Article or a Section, as the case may be, of this Indenture; and
(5) the words “herein”, “hereof” and
“hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
“Act”, when used with respect to any Holder, has the meaning specified in Section 104.
“Additional Interest” means the interest, if any, that shall accrue on any interest on the Securities of any series the payment of
which has not been made on the applicable Interest Payment Date and which shall accrue at the rate per annum specified or determined as specified in such Security.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Agent Member” means any member of, or participant in, the Depositary.
“Applicable Procedures” means, with respect to any transfer or transaction involving a Global Security or beneficial interest
therein, the rules and procedures of the Depositary for such Security, in each case to the extent applicable to such transaction and as in effect from time to time.
“Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 614 to act on behalf of the Trustee to
authenticate Securities of one or more series.
“Bankruptcy Code” means Title 11 of the United States Code or any successor
statute thereto, in each case as amended from time to time.
“Board of Directors” means either the board of directors of the
Corporation or any duly authorized committee of that board.
“Board Resolution” means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Corporation to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Business Day”, when used with respect to any Place of Payment, means (i) each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in that Place of Payment are authorized or required by law or regulation or executive order to close, or (ii) a day on which the Corporate Trust Office of the Trustee is not closed for business.
-2-
“Commission” means the Securities and Exchange Commission, 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.
“corporation” means a corporation, association, company, joint-stock company or business trust.
“Corporation” means the Person named as the “Corporation” in the first paragraph of this instrument until a successor
Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Corporation” shall mean such successor Person.
“Corporation Request” or “Corporation Order” mean, respectively, the written request or order signed in the name of the
Corporation by its Chairman of the Board, its President, Chief Financial Officer or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee.
“Corporate Trust Office” means the principal office of the Trustee at which at any particular time its corporate trust business
related to this Indenture shall be administered, which office at the date of the execution of this Indenture is located at 1100 North Market Street, Wilmington, DE 19890, Attention: Fulton Financial Corporation Administrator, or at any other time at
such other address as the Trustee may designate from time to time by notice to the Corporation or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by
notice to the Corporation).
“Covenant Defeasance” has the meaning specified in Section 1303.
“Defaulted Interest” has the meaning specified in Section 307.
“Defeasance” has the meaning specified in Section 1302.
“Depositary” means, with respect to Securities of any series issuable in whole or in part in the form of one or more Global
Securities, a clearing agency registered under the Exchange Act that is designated to act as Depositary for such Securities as contemplated by Section 301.
“Event of Default” has the meaning specified in Section 501.
“Exchange Act” means the Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to
time.
“Expiration Date” has the meaning specified in Section 104.
“Global Security” means a Security that evidences all or part of the Securities of any series and bears the legend set forth in
Section 204 (or such legend as may be specified as contemplated by Section 301 for such Securities) issued to the Depositary or its nominee for such series, and registered in the name of such Depositary or its nominee.
-3-
“Holder” means a Person in whose name a Security is registered in the Security
Register.
“Indenture” means this instrument as originally executed and as it may from time to time be supplemented or amended
by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to
be a part of and govern this instrument and any such supplemental indenture, respectively. The term “Indenture” shall also include the terms of particular series of Securities established as contemplated by Section 301.
“interest”, when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity,
means interest payable after Maturity.
“Interest Payment Date”, when used with respect to any installment of interest on a
Security of a particular series, means the date specified in such Security or in a Board Resolution or in an indenture supplemental hereto with respect to such series as the fixed date on which an installment of interest with respect to the
Securities of that series is due and payable.
“Investment Company Act” means the Investment Company Act of 1940 and any statute
successor thereto, in each case as amended from time to time.
“Major Constituent Bank” means any Subsidiary which is organized
as a banking organization under federal or state law and which represents 50% or more of the consolidated assets of the Corporation determined as of the date of the most recent audited financial statements of the Corporation.
“Maturity”, when used with respect to any Security, means the date on which the principal of such Security or an installment of
principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“Notice of Default” means a written notice of the kind specified in Section 501(4).
“Officers’ Certificate” means a certificate signed by the Chairman of the Board, the President, Chief Financial Officer or a
Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Corporation and delivered to the Trustee that meets the requirements of Section 103.
“Opinion of Counsel” means a written opinion of legal counsel, who may be legal counsel for the Corporation, and who shall be
acceptable to the Trustee that meets the requirements of Section 103.
“Original Issue Discount Security” means any
Security which 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 502.
-4-
“Outstanding”, when used with respect to Securities, means, as of the date of
determination, all Securities theretofore authenticated and delivered under this Indenture,
except:
(1) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the Corporation) in trust or set aside and segregated in trust by the Corporation (if the Corporation shall act as its own Paying Agent) for the Holders of such Securities;
provided
that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant to Section 1302; and
(4) Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of which
other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid obligations of the Corporation;
provided
,
however
, that in determining whether the
Holders of the requisite principal amount of the Outstanding Securities have given, made or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date, (A) the principal amount of an
Original Issue Discount Security which shall be deemed to be Outstanding shall be the amount of the principal thereof which would be due and payable as of such date upon acceleration of the Maturity thereof to such date pursuant to Section 502,
(B) if, as of such date, the principal amount payable at the Stated Maturity of a Security is not determinable, the principal amount of such Security which shall be deemed to be Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a Security denominated in one or more foreign currencies or currency units which shall be deemed to be Outstanding shall be the U.S. dollar equivalent, determined as of such date in the
manner provided as contemplated by Section 301, of the principal amount of such Security (or, in the case of a Security described in Clause (A) or (B) above, of the amount determined as provided in such Clause), and
(D) Securities owned by the Corporation or any other obligor upon the Securities or any Affiliate of the Corporation or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the
Corporation or any other obligor upon the
-5-
Securities or any Affiliate of the Corporation or of such other obligor. Upon the written request of the Trustee,
the Corporation shall furnish to the Trustee promptly an Officers’ Certificate listing and identifying all Securities, if any, known by the Corporation to be owned by, held by or for the account of the Corporation, or any other obligor on the
Securities or any Affiliate of the Corporation or such obligor, and subject to the provisions of Section 601, the Trustee shall be entitled to accept such Officers’ Certificate as conclusive evidence of the facts therein set forth and of
the fact that all Securities not listed therein are Outstanding for the purpose of any such determination.
“Paying Agent” means
the Trustee or any Person (including the Corporation acting as Paying Agent) authorized by the Corporation to deliver payment of the principal of or any premium or interest on any Securities on behalf of the Corporation.
“Person” means any individual, corporation, limited liability company, partnership, joint venture, trust, unincorporated
organization or government or any agency or political subdivision thereof or any other entity.
“Place of Payment”, when used
with respect to the Securities of any series, means the place or places where the principal of and any premium and interest on the Securities of that series are payable as specified as contemplated by Section 301.
“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
“Redemption Date”, when used with respect to any
Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
“Redemption Price”, when
used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
“Regular
Record Date” for the interest payable on any Interest Payment Date on the Securities of any series means, unless otherwise provided pursuant to Section 301, the date that is fifteen days preceding such Interest Payment Date (whether or not
a Business Day).
“Responsible Officer” shall mean, when used with respect to the Trustee, any officer within the corporate
trust department of the Trustee, including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the
Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the
administration of this Indenture.
-6-
“Securities” has the meaning stated in the first recital of this Indenture and more
particularly means any Securities authenticated and delivered under this Indenture.
“Securities Act” means the Securities Act
of 1933 and any statute successor thereto, in each case as amended from time to time.
“Security Register” and “Security
Registrar” have the respective meanings specified in Section 305.
“Special Record Date” for the payment of any
Defaulted Interest means a date fixed by the Corporation pursuant to Section 307.
“Stated Maturity”, when used with
respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“Subsidiary” means a corporation more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by
the Corporation or by one or more other Subsidiaries, or by the Corporation and one or more other Subsidiaries.
“Voting Stock”
means stock which ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency.
“Trust Indenture Act” means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed, except
as provided in Section 905;
provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of
1939 as so amended.
“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument until
a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean 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.
“U.S. Government Obligation” has the meaning specified in Section 1304.
“Vice President”, when used with respect to the Corporation or the Trustee, means any vice president, whether or not designated by a
number or a word or words added before or after the title “vice president”.
SECTION 102.
Compliance Certificates and
Opinions.
Upon any application or request by the Corporation to the Trustee to take any action under any provision of this Indenture,
the Corporation shall furnish to the Trustee
-7-
an Officers’ Certificate stating that all conditions precedent (including covenants compliance with which constitutes a condition precedent), if any, provided for in this Indenture relating
to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel, all such conditions precedent (including covenants compliance with which constitutes a condition precedent), if any, have been
complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture shall include,
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions herein relating thereto;
(2) a
brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition or covenant has
been complied with.
SECTION 103.
Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any
certificate or opinion of an officer of the Corporation may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or officers of the Corporation stating that the information with respect to such factual matters is in the possession of the Corporation, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
-8-
Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
SECTION 104.
Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given,
made or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Corporation. Such instrument or instruments (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and
(subject to Section 601) conclusive in favor of the Trustee and the Corporation, if made in the manner provided in this Section.
The
fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority.
The fact and date of the execution by any Person of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in any other manner that the Trustee deems sufficient and in accordance with such reasonable rules as the Trustee may determine.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Corporation in
reliance thereon, whether or not notation of such action is made upon such Security.
The Corporation may set any day as a record date for
the purpose of determining the Holders of Outstanding Securities of any series entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given,
made or taken by Holders of Securities of such series,
provided
that the Corporation may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request
or direction referred to in the next paragraph. If not set by the
-9-
Corporation before the first solicitation of a Holder made by any Person in respect of any such matter referred to in the foregoing sentence, the record date for any such matter shall be the 30th
day (or, if later, the date of the most recent list of Holders required to be provided pursuant to Section 701) before the first solicitation. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of the
relevant series on such record date, and no other Holders, shall be entitled to take the relevant action, whether or not such Holders remain Holders after such record date;
provided
that no such action shall be effective hereunder unless
taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Corporation from setting a new
record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to
this paragraph, the Corporation, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Securities of the relevant
series in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of determining the
Holders of Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of Default, (ii) any declaration of acceleration referred to in Section 502, (iii) any request to institute proceedings
referred to in Section 507(2) or (iv) any direction referred to in Section 512, in each case with respect to Securities of such series. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of
such series on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date;
provided
that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the
Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no
effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Trustee, at the Corporation’s expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Corporation in writing and to
each Holder of Securities of the relevant series in the manner set forth in Section 106.
With respect to any record date set
pursuant to this Section, the party hereto which sets such record dates may designate any day as the “Expiration Date” and from time to time may change the Expiration Date to any earlier or later day;
provided
that no such change
shall be effective unless notice of the proposed new Expiration Date is given to the other party hereto in writing, and to each Holder of Securities of the relevant series
-10-
in the manner set forth in Section 106, on or prior to the existing Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant to this Section, the
party hereto which set such record date shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph.
Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day after the applicable record date.
Without limiting
the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Security may do so with regard to all or any part of the principal amount of such Security or by one or more duly appointed agents each of which
may do so pursuant to such appointment with regard to all or any part of such principal amount.
SECTION 105.
Notices, Etc., to Trustee
and Corporation.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided
or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(1) the
Trustee by any Holder or by the Corporation shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing and delivered in person or mailed by first-class mail, postage prepaid, addressed to the Trustee at its
Corporate Trust Office, or transmitted by facsimile transmission (confirmed by delivery in person) or by guaranteed overnight courier, or
(2) the Corporation by the Trustee or by any Holder shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Corporation addressed to it at the address of its principal office specified in the first paragraph of this instrument, Attention: Corporate
Counsel, or at any other address previously furnished in writing to the Trustee by the Corporation.
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 (1) the party
providing such written notice, instructions or directions, subsequent to such transmission of written instructions, shall provide the originally executed instructions or directions to the Trustee in a timely manner, and (2) such originally
executed notice, instructions or directions shall be signed by an authorized representative of the party providing such notice, instructions or directions. The Trustee shall not be liable for any losses, costs or expenses arising directly or
indirectly from the Trustee’s reasonable reliance upon and compliance with such notice, instructions or directions notwithstanding such notice, instructions or directions conflict or are inconsistent with a subsequent notice, instructions or
directions that the Trustee had not received at the time of such reliance or compliance.
-11-
SECTION 106.
Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at his address as it appears in the Security Register, not later than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders. 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 by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
Notwithstanding any other provision herein, where this Indenture provides for notice of any event to any Holder of an interest in a Global
Security (whether by mail or otherwise), such notice shall be sufficiently given if given to the Depositary for such Security (or its designee), according to the Applicable Procedures of such Depositary, if any, prescribed for the giving of such
notice.
SECTION 107.
Conflict with Trust Indenture Act.
Except as otherwise expressly provided herein, the Trust Indenture Act shall apply as a matter of contract to this Indenture for purposes of
interpretation, construction and defining the rights and obligations hereunder, and this Indenture, the Corporation, and the Trustee shall be deemed for all purposes hereof to be subject to and governed by the Trust Indenture Act. Except as
otherwise provided herein, if and to the extent that any provision of this Indenture limits, qualifies or conflicts with the duties imposed by any of Sections 310 to 317, inclusive, of the Trust Indenture Act through operation of Section 318(c)
thereof, such imposed duties shall control.
Whenever this Indenture refers to a provision of the Trust Indenture Act, that provision is
incorporated by reference in and made a part of this Indenture. The Indenture shall also include those provisions of the Trust Indenture Act required to be included herein by the provisions of the Trust Indenture Reform Act of 1990. The following
Trust Indenture Act terms used in this Indenture have the following meanings:
“indenture securities” means the Securities;
“indenture trustee” means the Trustee; and
-12-
“obligor” on the Securities means the Corporation or any other obligor on the
Securities.
All other terms used in this Indenture that are defined in the Trust Indenture Act, defined by Trust Indenture Act reference
to another statute or defined by any Commission rule and not otherwise defined herein shall have the meanings assigned to them therein.
SECTION 108.
Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
SECTION 109.
Successors and Assigns.
All covenants and agreements in this Indenture by the Corporation shall bind its successors and assigns, whether so expressed or not.
SECTION 110.
Separability Clause.
In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111.
Benefits of
Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto
and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 112.
Governing Law.
This Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York.
SECTION 113.
Legal
Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the Securities (other than a provision of any Security which specifically states that such provision shall apply in lieu of this Section)) payment of interest or principal
(and premium, if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or
at the Stated Maturity. No interest shall accrue for the period from and after that Interest Payment Date, Redemption Date or Stated Maturity, as the case may be, and up to and including the next succeeding Business Day.
-13-
SECTION 114.
Force Majeure.
In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of
or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, 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 115.
Execution in Counterparts.
This Indenture may be executed and delivered in any number of counterparts, each of which when so executed and delivered shall be deemed to be
an original, and all such counterparts shall together constitute but one and the same instrument.
SECTION 116.
Waiver of Jury
Trial.
EACH OF THE CORPORATION, THE HOLDERS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 117.
U.S.A. PATRIOT Act
The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. PATRIOT Act, the Trustee is required to obtain, verify,
and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may request
in order for the Trustee to satisfy the requirements of the U.S.A. PATRIOT Act.
-14-
ARTICLE TWO
S
ECURITY
F
ORMS
SECTION 201.
Forms
Generally.
The Securities of each series and the Trustee’s Certificate of Authentication shall be in substantially the form set forth in this
Article, or in such other form as shall be established by or pursuant to a Board Resolution 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 such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or Depositary
therefor or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced by their execution thereof. If the form of Securities of any series is established by action taken pursuant to a Board Resolution, a
copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Corporation and delivered to the Trustee at or prior to the delivery of the Corporation Order contemplated by Section 303 for the
authentication and delivery of such Securities.
The definitive securities shall be printed, lithographed or engraved on steel engraved
borders or may be produced in any other manner, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities.
SECTION 202.
Form of Face of Security.
THIS SECURITY IS AN UNSECURED SENIOR DEBT OBLIGATION OF FULTON FINANCIAL CORPORATION. THIS SECURITY IS NOT A DEPOSIT OR SAVINGS ACCOUNT AND IS
NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
[
Insert any
legend required by the Internal Revenue Code and the regulations thereunder.
]
FULTON FINANCIAL CORPORATION
% Senior Notes due
Fulton Financial Corporation, a corporation duly organized and existing under the laws of the Commonwealth of
Pennsylvania (herein called the “Corporation”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to
, or registered assigns,
[
the principal sum of
Dollars on
][
or
][
such principal amount as may be set forth in the attached Schedule of Exchanges of Interests
]
[
if the Security is to bear interest prior to
-15-
Maturity, insert
— , and to pay interest thereon from or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually on and in each year, commencing
, at the rate of % per annum, until the principal hereof is paid or made available for payment
[
if applicable, insert
—
, provided
that any principal and premium, and any such installment of interest, which is overdue shall bear interest at the rate of % per annum (to the extent that the payment of such interest shall be legally
enforceable), from the dates such amounts are due until they are paid or made available for payment, and such interest shall be payable on demand
]
. The interest so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the
or (whether or not a Business Day), as the case may be, preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered
at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Corporation, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture
]
.
[
If the Security is not to bear interest prior to Maturity, insert
—
The principal of this Security shall not bear interest except in the case of a default in payment of principal upon acceleration, upon redemption or at Stated Maturity and in such case the overdue principal and any overdue premium shall bear
interest at the rate of % per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment. Interest on any
overdue principal or premium shall be payable on demand.
[
Any such interest on overdue principal or premium which is not paid on demand shall bear interest at the rate of % per annum (to the extent that the payment of
such interest on interest shall be legally enforceable), from the date of such demand until the amount so demanded is paid or made available for payment. Interest on any overdue interest shall be payable on demand.
] ]
Payment of the principal of (and premium, if any) and
[
if applicable, insert
— any such
]
interest on this
Security will be made at the office or agency of the Corporation maintained for that purpose in the United States, 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
[
if applicable, insert
— ;
provided
,
however
, that at the option of the Corporation payment of interest may be made through the Paying Agent by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register
]
.
Reference is hereby made to the further provisions of this Security set forth
on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
-16-
Unless the certificate of authentication hereon has been executed by the Trustee referred to on
the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
I
N
W
ITNESS
W
HEREOF
, the Corporation has caused this instrument to be duly executed.
Dated:
|
|
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|
|
FULTON FINANCIAL CORPORATION
|
|
|
|
|
By
|
|
|
|
|
|
|
SECTION 203.
Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the Corporation (herein called the “Securities”), issued and to be
issued in one or more series under an Indenture, dated as of [ ] (herein called the “Indenture”, which term shall have the meaning assigned to
it in such instrument), between the Corporation and Wilmington Trust, National Association, as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), and reference is hereby made to the
Indenture and all indentures supplemental thereto for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Corporation, the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof
[
if applicable, insert —,
limited in aggregate principal amount to
$
]
.
[
If applicable, insert
— The
Securities of this series are subject to redemption upon not less than 30 days’ notice,
[
if applicable, insert
— (1) on
in any year commencing with the year and ending with the year
through operation of the sinking fund for this series at a Redemption Price equal to 100% of the principal amount, and (2)
]
at any time
[
if applicable,
insert
— on or after , 20
]
, as a whole or in part, at the election of the Corporation, at the following
Redemption Prices (expressed as percentages of the principal amount): If redeemed
[
if applicable, insert
— on or before
, %, and if redeemed
]
during the
12-month
period beginning of the years indicated,
-17-
|
|
|
|
|
|
|
|
|
Year
|
|
Redemption
Price
|
|
Year
|
|
Redemption
Price
|
and thereafter at a
Redemption Price equal to % of the principal amount, together in the case of any such redemption
[
if applicable, insert
— (whether through operation of the sinking fund or
otherwise)
]
with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of
record at the close of business on the relevant record dates referred to on the face hereof, all as provided in the Indenture.
]
[
If applicable, insert
— The Securities of this series are subject to redemption upon not less than 30 days’
notice, (1) on in any year commencing with the year and ending with the year
through operation of the sinking fund for this series at the Redemption Prices for redemption through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the
table below, and (2) at any time
[
if applicable, insert
— on or after
]
, as a whole or in part, at the election of
the Corporation, at the Redemption Prices for redemption otherwise than through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below: If redeemed during the
12-month
period beginning of the years indicated,
|
|
|
|
|
|
|
Year
|
|
Redemption Price
For Redemption
Through Operation
of the
Sinking Fund
|
|
Redemption Price For
Redemption Otherwise
Than Through Operation
of
the Sinking Fund
|
and thereafter at a Redemption Price equal to % of the principal
amount, together in the case of any such redemption (whether through operation of the sinking fund or otherwise) with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date
will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant record dates referred to on the face hereof, all as provided in the Indenture.
]
-18-
[
If applicable, insert
— Notwithstanding the foregoing, the Corporation
may not, prior to , redeem any Securities of this series as contemplated by
[
if applicable, insert
— Clause (2) of
]
the preceding paragraph
as a part of, or in anticipation of, any refunding operation by the application, directly or indirectly, of moneys borrowed having an interest cost to the Corporation (calculated in accordance with generally accepted financial practice) of less than
% per annum.
]
[
If applicable, insert
— The sinking fund for this series provides
for the redemption on in each year beginning with the year and ending with the year
of
[
if applicable, insert
— not less than $ (“mandatory sinking fund”)
and not more than
]
$ aggregate principal amount of Securities of this series. Securities of this series acquired or redeemed by the Corporation otherwise than through
[
if applicable, insert
— mandatory
]
sinking fund payments may be credited against subsequent
[
if applicable, insert
— mandatory
]
sinking fund payments otherwise required to be made
[
if applicable, insert
— , in the inverse order in which they become due
]
.
]
[
If the
Security is subject to redemption of any kind, insert
—In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name
of the Holder hereof upon the cancellation hereof.
]
[
If applicable, insert
— The Indenture contains
provisions for defeasance at any time of
[
the entire indebtedness of this Security
] [
or
] [
certain restrictive covenants and Events of Default with respect to this Security
] [
, in each case
]
upon compliance with
certain conditions set forth in the Indenture.
]
[
If the Security is not an Original Issue Discount Security,
insert
— If an Event of Default, other than an Event of Default relating to bankruptcy, insolvency, reorganization or similar events of the Corporation or any Major Constituent Bank, with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series, together with any accrued and unpaid interest thereon, may be declared due and payable in the manner and with the effect provided in the Indenture; provided, however, if an
Event of Default relating to such bankruptcy, insolvency, reorganization or similar events with respect to the Corporation or any Major Constituent Bank shall occur and be continuing, the principal of the Securities of this series, together with any
accrued and unpaid interest thereon, will become immediately due and payable without any declaration or other act on the part of the Trustee or any Holder, in the manner and with the effect provided for in the Indenture.
]
[
If the Security is an Original Issue Discount Security, insert
— If an Event of Default, other than an Event of
Default relating to bankruptcy, insolvency, reorganization or similar events of the Corporation or any Major Constituent Bank, with respect to Securities of this series shall occur and be continuing, an amount of principal of the Securities of this
series, together with any accrued and unpaid interest thereon, may be declared due and payable in the manner and with the effect provided in the Indenture; provided, however, if an Event of Default relating to such bankruptcy, insolvency,
reorganization or similar events with respect to the Corporation or any Major Constituent
-19-
Bank shall occur and be continuing, such portion of the principal of the Securities of this series as may be specified by the terms hereof, together with any accrued and unpaid interest thereon,
will become immediately due and payable without any declaration or other act on the part of the Trustee or any Holder, in the manner and with the effect provided for in the Indenture. Such amount shall be equal to —
insert formula for
determining the amount
. Upon payment (i) of the amount of principal due and payable and (ii) of interest on any overdue principal, premium and interest (in each case to the extent that the payment of such interest shall be legally
enforceable), all of the Corporation’s obligations in respect of the payment of the principal of and premium and interest, if any, on the Securities of this series shall terminate.
]
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations
of the Corporation and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Corporation and the Trustee with the consent of the Holders of 66
2
/
3
% in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions
permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Corporation with certain provisions
of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any
Security 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 Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any
proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to
the Securities of this series, the Holders of not less than 25% in principal amount of the Securities of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default
and offered the Trustee indemnity satisfactory to it, and the Trustee shall not have received from the Holders of a majority in principal amount of Securities of this series at the time Outstanding a direction inconsistent with such request, and
shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of
principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the
Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Corporation, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place
and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register, upon surrender of this
-20-
Security for registration of transfer at the office or agency of the Corporation maintained under Section 1002 of the Indenture for such purpose, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Corporation and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like
tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in denominations of
$ and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Corporation may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration
of transfer, the Corporation, the Trustee and any agent of the Corporation or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the
Corporation, the Trustee nor any such agent shall be affected by notice to the contrary.
This Security shall be governed by and construed
in accordance with the laws of the State of New York.
All terms used in this Security which are defined in the Indenture shall have the
meanings assigned to them in the Indenture.
SECTION 204.
Form of Legend for Global Securities
.
Unless otherwise specified as contemplated by Section 301 for the Securities evidenced thereby, every Global Security authenticated and
delivered hereunder shall bear a legend in substantially the following form:
T
HIS
S
ECURITY
IS
A
G
LOBAL
S
ECURITY
WITHIN
THE
MEANING
OF
THE
I
NDENTURE
HEREINAFTER
REFERRED
TO
AND
IS
REGISTERED
IN
THE
NAME
OF
A
D
EPOSITARY
OR
A
NOMINEE
THEREOF
. T
HIS
S
ECURITY
MAY
NOT
BE
EXCHANGED
IN
WHOLE
OR
IN
PART
FOR
A
S
ECURITY
REGISTERED
,
AND
NO
TRANSFER
OF
THIS
S
ECURITY
IN
WHOLE
OR
IN
PART
MAY
BE
REGISTERED
,
IN
THE
NAME
OF
ANY
P
ERSON
OTHER
THAN
SUCH
D
EPOSITARY
OR
A
NOMINEE
THEREOF
,
EXCEPT
IN
THE
LIMITED
CIRCUMSTANCES
DESCRIBED
IN
THE
I
NDENTURE
.
-21-
SECTION 205.
Form of Trustee’s Certificate of Authentication.
The Trustee’s certificates of authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
Wilmington Trust, National Association,
As Trustee
|
|
|
|
|
|
|
|
|
Dated:
|
|
|
|
By
|
|
|
|
|
|
|
|
|
|
Authorized Officer
|
ARTICLE THREE
T
HE
S
ECURITIES
SECTION 301.
Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution and, subject to
Section 303, set forth, or determined in the manner provided, in an Officers’ Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish the Securities of the series from
Securities of any other series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to
Section 304, 305, 306, 906 or 1107 and except for any Securities which, pursuant to Section 303, are deemed never to have been authenticated and delivered hereunder);
(3) the date or dates on which the principal of any Securities of the series is payable;
(4) the rate or rates at which any Securities of the series shall bear interest, if any, the date or
dates from which any such interest shall accrue, the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date for any such interest payable on any Interest Payment Date;
(5) the place or places where the principal of and any premium and interest on any Securities of the
series shall be payable, the place or places where the
-22-
Securities of such series may be presented for registration of transfer or exchange, and the place or places where notices or demands to or upon the Corporation in respect of the Securities of
such series may be made;
(6) the period or periods within which, the price or prices at which and
the terms and conditions upon which any Securities of the series may be redeemed, in whole or in part, at the option of the Corporation and, if other than by a Board Resolution, the manner in which any election by the Corporation to redeem the
Securities shall be evidenced;
(7) the obligation, if any, of the Corporation to redeem or purchase
any Securities of the series pursuant to any sinking fund or analogous provisions or at the option of the Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which any Securities of
the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(8) if
other than denominations of $1,000 and any integral multiple thereof, the denominations in which any Securities of the series shall be issuable;
(9) if the amount of principal of or any premium or interest on any Securities of the series may be
determined with reference to an index or pursuant to a formula, the manner in which such amounts shall be determined;
(10) if other than the currency of the United States of America, the currency, currencies or currency
units (which, in each instance, shall be acceptable to the Trustee) in which the principal of or any premium or interest on any Securities of the series shall be payable and the manner of determining the equivalent thereof in the currency of the
United States of America for any purpose, including for purposes of the definition of “Outstanding” in Section 101;
(11) if the principal of or any premium or interest on any Securities of the series is to be payable, at
the election of the Corporation or the Holder thereof, in one or more currencies or currency units other than that or those in which such Securities are stated to be payable, the currency, currencies or currency units in which the principal of or
any premium or interest on such Securities as to which such election is made shall be payable, the periods within which and the terms and conditions upon which such election is to be made and the amount so payable (or the manner in which such amount
shall be determined);
(12) if other than the entire principal amount thereof, the portion of the
principal amount of any Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502;
(13) if the principal amount payable at the Stated Maturity of any Securities of the series will not be
determinable as of any one or more dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date for any purpose thereunder or hereunder, including the principal amount thereof
which shall be due and payable upon any Maturity other
-23-
than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to be the principal
amount shall be determined);
(14) if applicable, that the Securities of the series, in whole or any
specified part, shall be defeasible pursuant to Section 1302 or Section 1303 or both such Sections and, if other than by a Board Resolution, the manner in which any election by the Corporation to defease such Securities shall be evidenced;
(15) if applicable, that any Securities of the series shall be issuable in whole or in part in the
form of one or more Global Securities and, in such case, the respective Depositaries for such Global Securities, the form of any legend or legends which shall be borne by any such Global Security in addition to or in lieu of that set forth in
Section 204 and any circumstances in addition to or in lieu of those set forth in Clause (2) of the last paragraph of Section 305 in which any such Global Security may be exchanged in whole or in part for Securities registered, and
any transfer of such Global Security in whole or in part may be registered, in the name or names of Persons other than the Depositary for such Global Security or a nominee thereof;
(16) any addition to or change in the Events of Default which applies to any Securities of the series
and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 502;
(17) any addition to or change in the covenants set forth in Article Ten which applies to Securities of
the series; and
(18) any other terms of the Securities of such series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by Section 901(5)).
All Securities of any one series shall
be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to the Board Resolution referred to above and (subject to Section 303) set forth, or determined in the manner provided, in the
Officers’ Certificate referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are
established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Corporation and delivered to the Trustee at or prior to the delivery of
the Officers’ Certificate setting forth the terms of the series.
SECTION 302.
Denominations.
The Securities of each series shall be issuable only in registered form without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of $1,000 and any integral multiple thereof.
-24-
SECTION 303.
Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Corporation by its Chairman of the Board, the President, Chief Financial Officer or a Vice
President, attested by its Secretary or one of its Assistant Secretaries. The signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Corporation shall bind
the Corporation, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the Corporation may deliver Securities of any series
executed by the Corporation to the Trustee for authentication, together with a Corporation Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Corporation Order shall authenticate and deliver such
Securities. If the form or terms of the Securities of the series have been established as permitted by Sections 201 and 301, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been established as permitted by Section 201, that such form
has been established in conformity with the provisions of this Indenture;
(2) if the terms of such
Securities have been established as permitted by Section 301, that such terms have been established in conformity with the provisions of this Indenture;
(3) that such Securities, when authenticated and delivered by the Trustee and issued by the Corporation
in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Corporation enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; and
(4) that when such Securities have been duly executed, issued and delivered in accordance with the terms
of this Indenture, all conditions in this Indenture relating to the authentication and delivery of the Securities have been complied with.
-25-
If such form or terms have been so established, 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, liabilities or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee.
Notwithstanding the provisions of Section 301 and of the preceding paragraph, if all Securities of a series are not to be
originally issued at one time, it shall not be necessary to deliver the Officers’ Certificate otherwise required pursuant to Section 301 or the Corporation Order and Opinion of Counsel otherwise required pursuant to such preceding
paragraph at or prior to the authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has
been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Corporation, and the Corporation shall deliver such Security to
the Trustee for cancellation as provided in Section 309, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
SECTION 304.
Temporary Securities.
Pending the preparation of definitive Securities of any series, the Corporation may execute, and upon Corporation Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, photocopied or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued
and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Corporation will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at
the office or agency of the Corporation in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Corporation shall execute and the Trustee shall
authenticate and deliver in exchange therefor one or more definitive Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount. Until so exchanged, the temporary Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as definitive Securities of such series and tenor.
-26-
SECTION 305.
Registration, Registration of Transfer and Exchange.
The Corporation shall cause to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such office and in
any other office or agency of the Corporation in a Place of Payment being herein sometimes collectively referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Corporation shall
provide for the registration of Securities and of transfers of Securities. The Trustee is hereby appointed “Security Registrar” for the purpose of registering Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of a series at the office or agency of the Corporation in a Place of Payment for
that series, the Corporation shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series, of any authorized denominations and of like tenor and
aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged for other Securities of the same
series, of any authorized denominations and of like tenor and aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Corporation shall
execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
All
Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Corporation, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon
such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for exchange shall (if
so required by the applicable supplemental indenture or Securities) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Corporation and the Security Registrar duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities, but
the Corporation may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 304,
906 or 1107 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are to be redeemed in
part, the Corporation shall not be required (A) to issue, register the transfer of or exchange any Securities of that series (or of that series and specified tenor, as the case may be) during a period beginning at the opening of business
15 days before the day of the sending of a notice of redemption of any such Securities selected for redemption
-27-
under Section 1103 and ending at the close of business on the day of such sending, or (B) to register the transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (1) through (7) below shall
apply only to Global Securities:
(1) Each Global Security authenticated under this Indenture shall
be registered in the name of the Depositary designated for such Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for
all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary for such Global Security or a nominee
thereof unless (A) such Depositary (i) has notified the Trustee and the Corporation in writing that it is unwilling or unable to continue as Depositary for such Global Security and the Corporation is unable to locate a qualified successor
or (ii) has ceased to be a clearing agency registered under the Exchange Act, (B) there shall have occurred and be continuing an Event of Default with respect to such Global Security and the Depositary or the Corporation requests such
exchange or (C) there shall exist such circumstances, if any, in addition to or in lieu of the foregoing as have been specified for this purpose as contemplated by Section 301.
(3) Subject to Clause (2) above, any exchange of a Global Security for other Securities may be made
in whole or in part, and all Securities issued in exchange for a Global Security or any portion thereof shall be registered in such names as the Depositary for such Global Security shall direct.
(4) If any Global Security is to be exchanged for other Securities or cancelled in whole, it shall be
surrendered by or on behalf of the Depositary or its nominee to the Security Registrar for exchange or cancellation as provided in this Article Three. If any Global Security is to be exchanged for other Securities or cancelled in part, or if another
Security is to be exchanged in whole or in part for a beneficial interest in any Global Security, then either (i) such Global Security shall be so surrendered for exchange or cancellation as provided in this Article Three or (ii) the
principal amount thereof shall be reduced, or increased by an amount equal to the portion thereof to be so exchanged or cancelled, or equal to the principal amount of such other Security to be so exchanged for a beneficial interest therein, as the
case may be, by means of an appropriate adjustment made on the records of the Security Registrar, whereupon the Trustee, in accordance with the Applicable Procedures, shall instruct the Depositary or its authorized representative to make a
corresponding adjustment to its records. Upon any such surrender or adjustment of a Global Security by the Depositary, accompanied by registration instructions, the Trustee shall, subject to Section 305(2) and as otherwise provided in this
Article Three, authenticate and deliver any Securities issuable in exchange for such Global Security (or any portion thereof) in
-28-
accordance with the instructions of the Depositary. The Trustee shall not be liable for any delay in delivery of such instructions and may conclusively rely on, and shall be fully protected in
relying on, such instructions.
(5) The Depositary or its nominee, as the registered owner of a
Global Security, shall be the Holder of such Global Security for all purposes under this Indenture and the Securities, and owners of beneficial interests in a Global Security shall hold such interests pursuant to the Applicable Procedures.
Accordingly, any such owner’s beneficial interest in a Global Security shall be shown only on, and the transfer of such interest shall be effected only through, records maintained by the Depositary or its nominee or its Agent Members. Neither
the Trustee nor the Security Registrar shall have any liability in respect of any transfers effected by the Depositary.
(6) The rights of owners of beneficial interests in a Global Security shall be exercised only through
the Depositary and shall be limited to those established by law and agreements between such owners and the Depositary and/or its Agent Members.
(7) Every Security authenticated and delivered upon registration of transfer of, or in exchange for or
in lieu of, a Global Security or any portion thereof, whether pursuant to this Section, Section 304, 306, 906 or 1107 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Security, unless such Security is
registered in the name of a Person other than the Depositary for such Global Security or a nominee thereof.
SECTION 306.
Mutilated,
Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee together with such security or
indemnity as may be required by the Corporation or the Trustee to save each of them harmless, the Corporation shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Corporation and the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of
notice to the Corporation or the Trustee that such Security has been acquired by a bona fide purchaser, the Corporation shall execute and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new
Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any
such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Corporation in its discretion may, instead of issuing a new Security, pay such Security.
-29-
Upon the issuance of any new Security under this Section, the Corporation may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Corporation, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307.
Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with respect to any series of Securities, interest on any Security of any
series which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest in respect of Securities of such series, except that, unless otherwise provided in the Securities of such series, interest payable on the Stated Maturity of the principal of a Security shall be paid to the Person to
whom principal is paid. The initial payment of interest on any Security of any series that is issued between a Regular Record Date and the related Interest Payment Date shall be payable as provided in such Security or in the Board Resolution
pursuant to Section 301 with respect to the related series of Securities.
Any interest on any Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Corporation, at its election in each case, as provided in Clause (1) or (2) below:
(1) The Corporation may elect to make payment of any Defaulted Interest to the Persons in whose names
the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Corporation
shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the Corporation shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted
-30-
Interest as in this Clause provided. Thereupon the Corporation shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee, in the name and at the expense of the Corporation, shall cause notice, which notice shall be prepared by the Corporation and shall be acceptable to the Trustee, of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be given to each Holder of Securities of such series in the manner set forth in Section 106, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so sent, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following Clause (2).
(2) The
Corporation may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities of the series in respect of which interest
is in default may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Corporation to the Trustee of the proposed payment pursuant to this Clause, such manner of payment shall be deemed practicable by
the Trustee.
Subject to the foregoing provisions of this Section, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 308.
Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the Corporation, the Trustee and any agent of the Corporation or the
Trustee shall treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of and any premium and (subject to Section 307) any interest on such Security and for all
other purposes whatsoever, whether or not such Security be overdue, and neither the Corporation, the Trustee nor any agent of the Corporation or the Trustee shall be affected by notice to the contrary.
None of the Corporation, the Trustee or any agent of the Corporation or the Trustee shall have any responsibility or liability for any aspect
of the records relating to or payments made on account of beneficial ownership interests of a Security in global form, or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests. Notwithstanding the
foregoing, with respect to any Security in global form, nothing herein shall prevent the Corporation or Trustee, or any agent of the Corporation or the Trustee, from giving effect to any written certification, proxy or other authorization furnished
by a Depositary (or its nominee), as a Holder, with respect to such Security in global form or impair, as between such Depositary and owners of beneficial interests in such Security in global form, the operation of customary practices governing the
exercise of the rights of such Depositary (or its nominee) as Holder of such Security in global form.
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SECTION 309.
Cancellation.
All Securities surrendered for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment shall,
if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The Corporation may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Corporation may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Corporation
has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of by the Trustee in accordance with its customary procedures.
SECTION 310.
Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities of any series, interest on the Securities of each series shall
be computed on the basis of a
360-day
year comprised of twelve
30-day
months.
SECTION 311.
CUSIP Numbers.
The Corporation in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use
“CUSIP” numbers in notices of redemption as a convenience to Holders;
provided
that any such notice may state no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any
notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Corporation will promptly
notify the Trustee in writing of any change in the “CUSIP” numbers.
ARTICLE FOUR
S
ATISFACTION
AND
D
ISCHARGE
SECTION 401.
Satisfaction and Discharge of Indenture.
This Indenture shall upon Corporation Request cease to be of further effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the expense of the Corporation, shall
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execute proper instruments acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other than (i) Securities which have
been destroyed, lost or stolen and which have been replaced or paid as provided in Section 306 and (ii) Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Corporation and
thereafter repaid to the Corporation or discharged from such trust, as provided in Section 1003) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year, or
(iii) if redeemable at the option of the Corporation, are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Corporation,
and the Corporation, in the case of (i), (ii) or (iii) above, has irrevocably deposited or caused to be irrevocably deposited with the
Trustee as trust funds in trust for such purpose money in an amount sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, including the principal of any premium and
interest on, to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Corporation has paid or caused to be paid all other sums payable hereunder by the Corporation
with respect to such Outstanding Securities; and
(3) the Corporation has delivered to the Trustee
an Officers’ Certificate and an Opinion of Counsel complying with Section 103, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture as to such Securities have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Corporation to the Trustee under
Section 607, the obligations of the Trustee to any Authenticating Agent under Section 614 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003 shall survive.
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SECTION 402.
Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money deposited with the Trustee pursuant to Section 401 shall
be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Corporation acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and interest for whose payment such money has been deposited with the Trustee.
If the Trustee or Paying Agent is unable to apply any money in accordance with Section 401 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 Corporation’s obligations under this Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 401 until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 401; provided that if the Corporation has made any payment of principal of,
premium, if any, or interest on any Securities because of the reinstatement of its obligations, the Corporation shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money held by the Trustee or Paying
Agent.
ARTICLE FIVE
R
EMEDIES
SECTION
501.
Events of Default.
“Event of Default”, wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):
(1) default in the payment of any
interest (including Additional Interest) upon any Security of that series when it becomes due and payable, and continuance of such default for a period of 30 days;
(2) default in the payment of the principal, or premium, if any, on any Security of that series at its
Maturity;
(3) default in the deposit of any sinking fund payment, when and as due by the terms of a
Security of that series, and a continuance of such default for a period of five days;
(4) default
in the performance, or breach, of any covenant or warranty of the Corporation in this Indenture (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section specifically dealt with or
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which has expressly been included in this Indenture solely for the benefit of series of
Securities other than that series), and continuance of such default or breach for a period of 60 days after there has been given, by registered or certified mail, to the Corporation by the Trustee or to the Corporation and the Trustee by the Holders
of at least 25% in principal amount of the Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder;
(5) the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in
respect of the Corporation in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order adjudging the Corporation bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Corporation under any applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Corporation or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or
order unstayed and in effect for a period of 60 consecutive days;
(6) the commencement by the
Corporation of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the
entry of a decree or order for relief in respect of the Corporation in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable federal or state law, or the consent by it to the filing of such petition or to the appointment of
or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Corporation or of any substantial part of its property, or the taking of corporate action by the Corporation in furtherance of any
such action;
(7) (A) the appointment by a competent government agency having primary regulatory
authority over any Major Constituent Bank under any applicable federal or state banking, insolvency or similar law now or hereafter in effect of a receiver of any such Major Constituent Bank or (B) the entry of a decree or order in any case or
proceeding under any applicable federal or state banking, insolvency or other similar law now or hereafter in effect appointing any receiver of any Major Constituent Bank; or
(8) any other Event of Default provided with respect to Securities of that series.
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SECTION 502.
Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in Section 501(5), 501(6) or 501(7)) with respect to Securities of any
series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of that series may declare the principal amount of all the Securities
of that series (or, if any Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof), together with any accrued and unpaid interest thereon, to
be due and payable immediately, by a notice in writing to the Corporation (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount), together with any accrued and unpaid interest thereon,
shall become immediately due and payable. If an Event of Default specified in Section 501(5), 501(6) or 501(7) with respect to Securities of any series at the time Outstanding occurs, the principal amount of all the Securities of that series
(or, if any Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof), together with any accrued and unpaid interest thereon, shall
automatically, and without any declaration or other action on the part of the Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree
for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities of that series, by written notice to the Corporation and the Trustee,
may rescind and annul such declaration and its consequences if
(1) the Corporation has paid or
deposited with the Trustee a sum sufficient to pay
(A) all overdue installments of any interest on
all Securities which have become due otherwise than by such declaration of acceleration,
(B) the
principal of (and premium, if any, on) any Securities of that series which have become due otherwise than by such declaration of acceleration and, to the extent permitted by applicable law, interest thereon at the rate or rates prescribed therefor
in such Securities,
(C) to the extent that payment of such interest is lawful, interest upon
overdue interest at the rate or rates prescribed therefor in such Securities, and
(D) all sums
paid or advanced by the Trustee hereunder and the compensation, reasonable expenses, disbursements and advances of the Trustee, its agents and counsel and all other amounts due the Trustee under Section 607;
and
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(2) all Events of Default with respect to Securities of
that series, other than the
non-payment
of the principal of, any premium and interest on, Securities of that series which have become due solely by such declaration of acceleration, have been cured or waived
as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
SECTION 503.
Collection of Indebtedness and Suits for Enforcement by Trustee.
The Corporation covenants that if
(1) default is made in the payment of any interest on any Security when such interest becomes due and
payable and such default continues for a period of 30 days, or
(2) default is made in the
payment of the principal of (or premium, if any, on) any Security at the Maturity thereof,
the Corporation will, upon demand of the Trustee, pay to the
Trustee, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal, including any sinking fund payment, and any premium and interest and, to the extent that payment of such interest
shall be legally enforceable, interest on any overdue principal and premium and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Corporation shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust,
may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Corporation or any other obligor upon such Securities and collect
the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Corporation or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion (subject to its
duty of care following an Event of Default as set forth in this Indenture) proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate (subject to its duty of care following an Event of
Default as set forth in this indenture) judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
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SECTION 504.
Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Corporation (or any other obligor upon the Securities), its property or its creditors, the
Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized (i) to file and prove a claim for the whole amount of principal (and premium, if any) and interest owing and unpaid in respect of the Securities in accordance with the terms thereof and to file such
other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expense, disbursements and advances of the Trustee, its agents and counsel) and of the
Holders allowed in such judicial proceeding, and (ii) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding;
provided,
however,
that the Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’ or other similar committee.
SECTION 505.
Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of
any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
SECTION 506.
Application of Money Collected.
Any money or property collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by
the Trustee and, in case of the distribution of such money or property on account of principal or any premium or
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interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any predecessor Trustee under Section 607;
SECOND: To the payment of the amounts then due and unpaid for principal of and any premium and interest on the Securities in
respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal and any premium and interest, respectively;
and
THIRD: The balance, if any, to the Corporation or as a court of competent jurisdiction may direct in writing.
SECTION 507.
Limitation on Suits.
Subject to Section 508, no Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a continuing Event of Default with
respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount
of the Outstanding Securities of that series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity satisfactory to it against the costs,
expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for
60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the Trustee during such
60-day
period by the Holders of a majority in principal amount of the Outstanding Securities of that series;
it being
understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to
obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders.
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SECTION 508.
Unconditional Right of Holders to Receive Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any Security of any series shall have the right, which is absolute
and unconditional, to receive payment of the principal of and any premium and (subject to Section 307) interest on such Security on the respective Stated Maturities expressed in such Security (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
SECTION 509.
Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Corporation, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
SECTION 510.
Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511.
Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities of the related series to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article Five or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 512.
Control by
Holders.
Subject to Section 603(5), the Holders of a majority in principal amount of the Outstanding Securities of any series
shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising
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any trust or power conferred on the Trustee, with respect to the Securities of such series,
provided
that
(1) such direction shall not be in conflict with any rule of law or with this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with
such direction, and
(3) subject to the provisions of Section 601, the Trustee shall have the
right to decline to follow such direction if a Responsible Officer or Responsible Officers of the Trustee shall, in good faith, determine that the proceeding so directed would be unjustly prejudicial to the Holders not joining in any such direction
or would involve the Trustee in personal liability.
SECTION 513.
Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the Outstanding Securities of any series affected thereby may on behalf of the
Holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article Nine cannot be modified or
amended without the consent of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
SECTION 514.
Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay the costs
of such suit, and may assess costs against any such party litigant, in the manner and to the extent provided in the Trust Indenture Act;
provided
that neither this Section nor the Trust Indenture Act shall be deemed to authorize any court to
require such an undertaking or to make such an assessment in any suit instituted by the Trustee, a suit by a Holder pursuant to Section 508 or a suit by the holders of more than 10% in aggregate principal amount of Securities then outstanding.
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SECTION 515.
Waiver of Usury, Stay or Extension Laws.
The Corporation covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Corporation (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
T
HE
T
RUSTEE
SECTION 601.
Certain Duties and Responsibilities.
(1) Except during the continuance of an Event of Default,
(A) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in
this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(B) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein).
(2) In case an Event of
Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(3) No provision of this Indenture shall be
construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that
(A) this Subsection shall not be construed to limit the effect of Subsection (1) of this Section;
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(B) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(C) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in
good faith in accordance with the direction of the Holders pursuant to Section 512, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture with respect to the Securities of such series; and
(D) no provision
of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall not have
reasonable grounds for believing repayment of such funds is reasonably assured to it or an adequate indemnity against such risk or liability.
(4) Whether or not therein expressly so provided, every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.
SECTION
602.
Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect to Securities of any series, the
Trustee shall give the Holders of Securities of such series notice of such default hereunder known to a Responsible Officer of the Trustee, unless such default shall have been cured or waived; and
provided, further
, that in the case of any
default of the character specified in Section 501(1) with respect to Securities of such series, no such notice to Holders shall be given until at least 30 days after the occurrence thereof. For the purpose of this Section, the term
“default” means any event which is, or after notice or lapse of time or both would become a default.
SECTION 603.
Certain
Rights of Trustee.
Subject to the provisions of Section 601 and TIA Sections 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, 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 party or parties;
(2) any request or direction of the Corporation mentioned herein shall
be sufficiently evidenced by a Corporation Request or Corporation Order, and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;
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(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part,
request and rely upon an Officers’ Certificate or an Opinion of Counsel, or both, which shall comply with Section 102;
(4) the Trustee may consult with counsel of its own selection 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 accordance with the advice or opinion of such counsel;
(5) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by
this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to
make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Corporation, personally or by agent or attorney at the expense of the Corporation and shall incur no liability of any kind by reason of such inquiry or investigation;
(7) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(8) the Trustee shall not be deemed to have notice of any default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities
and this Indenture;
(9) the rights, privileges, protections, immunities and benefits given to the
Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder;
(10) the Trustee may request that the Corporation deliver a certificate setting forth the names of
individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture;
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(11) any permissive right or authority granted to the
Trustee in this Indenture shall not be construed as a mandatory duty;
(12) in no event shall the
Trustee be responsible or liable to any Person for special, punitive, indirect, consequential or incidental loss or damage of any kind whatsoever (including, but not limited to, loss of profits), irrespective of whether the Trustee has been advised
of the likelihood of such loss or damage and regardless of the form of action;
(13) the Trustee
will not be liable for any action it takes or omits to take in good faith that it reasonably believes to be authorized or within the rights or powers conferred upon it by this Indenture;
(14) the Trustee shall not be required to give any bond or surety in respect of the performance of its
powers and duties hereunder;
(15) the Trustee shall have the right to decline to take any action if
the Trustee, being advised by counsel in writing, determines that such action may not lawfully be taken; and
(16) the Trustee shall have no responsibility or liability for the acts or omissions of any other party,
including the Paying Agent, Authenticating Agent, or Depository (provided, however, that this protection shall not limit the responsibility or liability of Wilmington Trust, National Association, in its capacity as Paying Agent or authenticating
agent).
SECTION 604.
Trustee Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements
of the Corporation, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or application by the Corporation of Securities or the proceeds thereof.
SECTION 605.
May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Corporation, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal with the Corporation with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
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SECTION 606.
Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as otherwise agreed with the Corporation.
SECTION 607.
Compensation and Reimbursement.
The Corporation agrees:
(1) to pay to the Trustee from time to time the compensation for all services rendered by it hereunder
as shall be agreed to in writing by the Corporation and the Trustee (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to the Trustee’s negligence or willful misconduct; and
(3) to indemnify the Trustee and any predecessor Trustee and their respective agents for, and to hold it
harmless against, any and all losses, liabilities, claims, damages, or expense (including the reasonable compensation and the expenses and disbursements of its agents and counsel) incurred without negligence or willful misconduct on the
Trustee’s part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim (regardless of whether asserted by the Corporation,
any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder or in connection with enforcing the provisions of this Section.
This indemnification and provisions of this Section shall survive the termination of this Indenture and resignation or removal of the Trustee.
To secure the Corporation’s payment obligations in this Section 607, the Trustee shall have a lien senior to the Securities as
to all money or property held or collected by the Trustee for any amount owing it or any predecessor Trustee pursuant to this Section 607, except such money or property held in trust for the benefit of holders of particular Securities. The
obligations of the Corporation under this Section 607 shall survive the satisfaction and discharge of this Indenture or the resignation or removal of the Trustee.
When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 501(5) or 501(6), the
expenses (including the reasonable charges and expenses of its counsel) of and the compensation for such services are intended to constitute expenses of administration under any applicable Bankruptcy Code or any successor statute.
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SECTION 608.
Conflicting Interests.
If the Trustee for the Securities of any series issued hereunder has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by such Trust Indenture
Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture with respect to Securities of more than one series or a trustee under the Subordinated Indenture, dated as of November 17,
2014, between the Corporation and Wilmington Trust, National Association. Nothing herein shall prevent the Trustee from filing with the Commission the application referred to in the penultimate paragraph of Section 310(b) of the Trust Indenture Act.
SECTION 609.
Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with respect to the Securities of each series, which may be Trustee hereunder
for Securities of one or more other series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has (or in the case of a corporation included in a bank holding company system, the related holding
company has) a combined capital and surplus of at least $50,000,000 and is a corporation organized and existing under the laws of the United States of America or of any state or territory thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers and subject to supervision or examination by federal, state, territorial or District of Columbia authority. If any such Person publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes of this Section and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such Person shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at any time the Trustee with respect to the Securities of any series shall cease to be eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this Article.
SECTION 610.
Resignation and Removal; Appointment
of Successor.
No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Corporation.
If the instrument of acceptance by a successor Trustee required by Section 611 shall not have been delivered to the
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Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
The Trustee may be removed with 30 days’ notice at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Corporation. If the instrument of acceptance by a successor Trustee required by Section 610
shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition, at the expense of the Corporation, any court of competent jurisdiction for the appointment of a successor
Trustee.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after written request therefor by the
Corporation or by any Holder who has been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall fail to resign after written
request therefor by the Corporation or by any such Holder, or
(3) the Trustee shall become
incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (A) the Corporation by a Board Resolution may remove the Trustee with respect
to all Securities, or (B) subject to Section 514, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.
If the Trustee
shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Corporation, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 611. If, within one year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Corporation and the retiring Trustee,
the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 611, become the successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Corporation. If no
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successor Trustee with respect to the Securities of any series shall have been so appointed by the Corporation or the Holders and accepted appointment in the manner required by Section 611,
any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
The Corporation shall give notice of each resignation and each removal of the Trustee with
respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series to all Holders of Securities of such series in the manner provided in Section 106. Each notice shall include the
name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.
SECTION 611.
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 Corporation 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 Corporation or the successor Trustee, such
retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall, upon payment of any fees and expenses due and owing to
it hereunder, 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
Corporation, 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
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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 Corporation or any successor Trustee, such retiring Trustee shall, upon payment of any fees
and expenses due and owing to it hereunder with respect to such series, 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 Corporation shall execute any
and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in the first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 612.
Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, by sale or otherwise, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities.
SECTION 613.
Preferential Collection of Claims Against Corporation.
If and when the Trustee shall be or become a creditor of the Corporation (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Corporation (or any such other obligor).
SECTION 614.
Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on
behalf of the Trustee to authenticate Securities of such series issued upon original issue and upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 306, and Securities so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder.
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Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Corporation at all times.
Any corporation into which an Authenticating Agent may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to all or substantially all of the corporate agency or corporate trust
business of an Authenticating Agent, by sale or otherwise, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the
part of the Trustee or the Authenticating Agent.
If an appointment with respect to one or more series is made pursuant to this Section,
the Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
Wilmington Trust, National Association,
As Trustee
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As Authenticating Agent
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Authorized Officer
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ARTICLE SEVEN
H
OLDERS
’ L
ISTS
AND
R
EPORTS
BY
T
RUSTEE
AND
C
ORPORATION
SECTION 701.
Corporation to Furnish Trustee Names and Addresses of Holders.
The Corporation will furnish or cause to be furnished to the Trustee
(1) not more than 10 days after each Regular Record Date, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of Securities of each series as of such Regular Record Date, and
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(2) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Corporation of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished;
excluding
from any such list names and addresses received by the Trustee in its capacity as Security Registrar.
SECTION 702.
Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 701 upon
receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to their rights under this
Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with the Corporation and the Trustee that neither the Corporation nor
the Trustee nor any agent of either of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act.
SECTION 703.
Reports by Trustee.
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.
Reports so required to be transmitted at stated
intervals of not more than 12 months shall be transmitted within 60 days after May 15 of each calendar year, commencing after the first issuance of Securities under this Indenture.
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 Corporation. The Corporation will notify the Trustee in writing when any Securities are listed or delisted on any stock exchange.
SECTION 704.
Reports by Corporation.
The Corporation shall file with the Trustee and the Commission, and transmit to Holders, copies of such information, documents and other
reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to such Act;
provided
that any such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the same is filed with the Commission.
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For purposes of this Section 704, the Corporation will be deemed to have filed, furnished or
delivered reports to the Trustee and the Holders if (i) such reports are filed with the Commission via the EDGAR filing system, (ii) such reports are currently available, and (iii) the Corporation electronically delivers to the
Trustee a link to the EDGAR filing each time the Corporation files such a report.
The delivery of financial reports and statements to the
Trustee as provided herein shall be for informational purposes only and the Trustee shall have no duty to review or analyze such reports or statements to determine compliance with covenants or other obligations of the Corporation and shall not be
deemed to have knowledge of any matter contained therein or knowable therefrom.
ARTICLE EIGHT
C
ONSOLIDATION
, M
ERGER
, C
ONVEYANCE
, T
RANSFER
OR
L
EASE
SECTION 801.
Corporation May Consolidate, Etc., Only on Certain Terms.
The Corporation shall not consolidate with or merge into any other person or convey, transfer or lease all or substantially all of its
properties and assets to any Person, unless:
(1) the Person formed by such consolidation or into
which the Corporation is merged or the Person which acquires by conveyance or transfer, or which leases, all or substantially all of the properties and assets of the Corporation shall be a corporation, partnership, limited liability company or
trust, shall be organized and validly existing under the laws of the United States of America, any state thereof or the District of Columbia and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, the
due and punctual payment of the principal of and any premium and interest on all the Securities and the performance or observance of every covenant of this Indenture on the part of the Corporation to be performed or observed;
(2) immediately after giving effect to such transaction and treating any indebtedness which becomes an
obligation of the Corporation or any Subsidiary as a result of such transaction as having been incurred by the Corporation or such Subsidiary at the time of such transaction, no Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be continuing;
(3) if, as a result
of any such consolidation or merger or such conveyance, transfer or lease, properties or assets of the Corporation would become subject to a mortgage, pledge, lien, security interest or other encumbrance that would not be permitted by this
Indenture, the Corporation or such successor Person shall take such steps as shall be necessary to secure the Securities equally and ratably with (or senior to) all indebtedness secured thereby; and
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(4) the Corporation has delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating
to such transaction have been complied with; and the Trustee, subject to Section 601, may rely on such Officers’ Certificate and Opinion of Counsel as conclusive evidence that such transaction complies with this Section 801.
SECTION 802.
Successor Substituted.
Upon any consolidation of the Corporation with, or merger of the Corporation into, any other Person or any conveyance, transfer or lease of all
or substantially all of the properties and assets of the Corporation in accordance with Section 801, the successor Person formed by such consolidation or into which the Corporation is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and power of, the Corporation under this Indenture with the same effect as if such successor Person had been named as the Corporation herein, and thereafter, except in the
case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities.
ARTICLE NINE
S
UPPLEMENTAL
I
NDENTURES
SECTION 901.
Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Corporation, when authorized by a Board Resolution, and the Trustee, at any time and from time to time,
may enter into one or more indentures supplemental hereto, for any of the following purposes:
(1) to evidence the succession of another Person to the Corporation and the assumption by any such
successor of the covenants of the Corporation herein and in the Securities; or
(2) to add to the
covenants of the Corporation for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely
for the benefit of such series) or to surrender any right or power herein conferred upon the Corporation; or
(3) to add any additional Events of Default for the benefit of the Holders of all or any series of
Securities (and if such additional Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default are expressly being included solely for the benefit of such series); or
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(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate the issuance of
Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities,
provided
that any such addition, change or elimination (A) shall neither (i) apply to any Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (ii) modify the rights of the Holder of any such Security with respect to such provision or (B) shall become effective only when there is no such Security Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as permitted by Sections 201 and
301; or
(8) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611; or
(9) to cure any ambiguity, to correct or
supplement any provision herein which may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture,
provided
that such action pursuant to
this Clause (9) shall not adversely affect the interests of the Holders of Securities of any series, as determined, in good faith, by the Corporation.
SECTION 902.
Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than 66 2/3% in principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Corporation and the Trustee, the Corporation, when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture;
provided, however,
that no
such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment of principal of or interest on,
any Security, or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or reduce the amount of the principal of an Original Issue Discount Security or any
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other Security which would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502, or change any Place of Payment where, or the coin or
currency in which, any Security or any premium or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date) or modify the provisions of this Indenture with respect to the subordination of the Securities in a manner adverse to Holders, or
(2) reduce the percentage in principal amount of the Outstanding Securities of any series, the consent
of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for
in this Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1008, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby;
provided,
however,
that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to “the Trustee” and concomitant changes in this Section and Section 1008, or the deletion of this
proviso, in accordance with the requirements of Sections 611 and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
It shall not
be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903.
Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Officers’ Certificate and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture and that all conditions herein provided for relating to such action have been complied with. The Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee’s own rights, duties, liabilities or immunities under this Indenture or otherwise.
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SECTION 904.
Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 905.
Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906.
Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Corporation, bear a notation in form approved by the Corporation as to any matter provided for in such supplemental indenture. If the Corporation shall so determine, new Securities of any series so modified as to conform, in the
opinion of the Corporation, to any such supplemental indenture may be prepared and executed by the Corporation and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
C
OVENANTS
SECTION 1001.
Payment of Principal, Premium and Interest.
The Corporation covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay the principal of and any
premium and interest on the Securities of that series in accordance with the terms of the Securities and this Indenture. Unless otherwise provided with respect to a series of Securities, principal, premium, if any, and interest will be considered
paid on the date due if the Paying Agent, if other than the Corporation, holds as of 11:00 a.m. New York City time on the due date money deposited by the Corporation in immediately available funds and designated for and sufficient to pay all
principal, premium, if any, and interest then due.
SECTION 1002.
Maintenance of Office or Agency.
The Corporation will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Corporation in respect of the Securities of that series and this Indenture
may be served. The Corporation initially appoints the Trustee, acting through its Corporate Trust Office,
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as its agent for said purposes;
provided
, however, no service of legal process on the Corporation may be made at any office of the Trustee. The Corporation 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 Corporation shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Corporation hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
The Corporation may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time rescind such designations;
provided, however,
that no such designation or rescission shall in any manner relieve the Corporation of its obligation to maintain an
office or agency in each Place of Payment for Securities of any series for such purposes. The Corporation will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office
or agency. Unless otherwise specified as contemplated by Section 301, the Corporation hereby designates as the Place of Payment for each series the Corporate Trust Office of the Trustee.
SECTION 1003.
Money for Securities Payments to Be Held in Trust.
If the Corporation shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date
of the principal of or any premium or interest on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee in writing of its action or failure so to act.
Whenever the Corporation shall have one or more Paying Agents for any series of Securities, it will, prior to each due date of the principal
of or any premium or interest on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Corporation will promptly notify the Trustee in writing of its action or failure so to act.
The Corporation will cause each Paying Agent
for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will (1) comply
with the provisions of the Trust Indenture Act applicable to it as a Paying Agent; (2) during the continuance of any default by the Corporation (or any other obligor upon the Securities of that series) in the making of any payment in respect of
the Securities of that series, upon the written request of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Securities of that series; (3) hold all sums held by it for the
payment of the principal of (and premium, if any) or interest on the Securities of a series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise
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disposed of as herein provided; and (4) give the Trustee notice of any default by the Corporation (or any other obligor upon such Securities) in the making of any payment of principal (and
premium, if any) or interest in respect of any Security of any series.
The Corporation may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or by Corporation Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Corporation or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Corporation or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such
money.
Subject to applicable unclaimed property laws, any money deposited with the Trustee or any Paying Agent, or then held by the
Corporation, in trust for the payment of the principal of or any premium or interest on any Security of any series and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the
Corporation on Corporation Request, or (if then held by the Corporation) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Corporation for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Corporation as trustee thereof, shall thereupon cease;
provided, however,
that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Corporation cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in the Borough of
Manhattan, the City of New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will
be repaid to the Corporation.
SECTION 1004.
Statement by Officers as to Default.
The Corporation will deliver to the Trustee, within 120 days after the end of each fiscal year of the Corporation ending after the date hereof,
an Officers’ Certificate covering the preceding calendar year, stating whether or not to the best knowledge of the signers thereof the Corporation is in default in the performance or observance of any of the terms, provisions and conditions of
this Indenture (without regard to any period of grace or requirement of notice provided hereunder) and, if the Corporation shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge.
The Corporation shall deliver to the Trustee, as soon as possible and in any event within 30 days after the Corporation becomes aware of the
occurrence of any Event of Default or an event which, with notice or the lapse of time or both, would constitute an Event of Default, an Officers’ Certificate setting forth the details of such Event of Default and the action which the
Corporation proposes to take with respect thereto.
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SECTION 1005.
Existence.
Subject to Article Eight, the Corporation will do or cause to be done all things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and franchises;
provided, however,
that the Corporation shall not be required to preserve any such right or franchise if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Corporation and that the loss thereof is not disadvantageous in any material respect to the Holders.
SECTION 1006.
Maintenance of Properties.
The Corporation will cause all properties used or useful in the conduct of its business or the business of any Subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all necessary equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of the Corporation may
be necessary so that the business carried on in connection therewith may be properly and advantageously conducted at all times; provided, however, that nothing in this Section shall prevent the Corporation from discontinuing the operation or
maintenance of any of such properties if such discontinuance is, in the judgment of the Corporation, desirable in the conduct of its business or the business of any Subsidiary and not disadvantageous in any material respect to the Holders.
SECTION 1007.
Payment of Taxes and Other Claims.
The Corporation will pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (1) all taxes,
assessments and governmental charges levied or imposed upon the Corporation or any Subsidiary or upon the income, profits or property of the Corporation or any Subsidiary, and (2) all lawful claims for labor, materials and supplies which, if
unpaid, might by law become a lien upon the property of the Corporation or any Subsidiary; provided, however, that the Corporation shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim
whose amount, applicability or validity is being contested in good faith by appropriate proceedings.
SECTION 1008.
Waiver of Certain
Covenants.
Except as otherwise specified as contemplated by Section 301 for Securities of such series, the Corporation may, with
respect to the Securities of any series, omit in any particular instance to comply with any term, provision or condition set forth in any covenant provided pursuant to Section 301(18), 901(2) or 901(7) for the benefit of the Holders of such
series or in Section 1005, if before the time for such compliance the Holders of at least 66 2/3% in principal amount of the Outstanding Securities of such series shall, by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so
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expressly waived, and, until such waiver shall become effective, the obligations of the Corporation and the duties of the Trustee in respect of any such term, provision or condition shall remain
in full force and effect.
SECTION 1009.
Calculation of Original Issue Discount.
For each year during which any Securities that were issued with original issue discount are Outstanding, the Corporation shall furnish in
writing to each Paying Agent in a timely fashion such information as may be reasonably requested by each Paying Agent in order that each Paying Agent may prepare the information which it is required to report for such year on Internal Revenue
Service Forms 1096 and 1099 pursuant to Section 6049 of the Internal Revenue Code of 1986, as amended. Such information shall include the amount of original issue discount includible in income for each $1,000 of principal amount at Stated
Maturity of outstanding Securities during such year.
ARTICLE ELEVEN
R
EDEMPTION
OF
S
ECURITIES
SECTION 1101.
Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for such Securities) in accordance with such form of Security and this Article;
provided, however
, that if any provision of any such form of Security shall conflict with any provision of
this Article, the provision of such form of Security shall govern. Except as otherwise set forth in the form of Security for such series, such Security of a series shall be subject to partial redemption only in the amount of $1,000 or any integral
multiples thereof.
SECTION 1102.
Election to Redeem; Notice to Trustee.
The election of the Corporation to redeem any Securities shall be evidenced by a Board Resolution or in another manner specified as
contemplated by Section 301 for such Securities. In case of any redemption at the election of the Corporation of less than all the Securities of any series (including any such redemption affecting only a single Security), the Corporation shall,
at least 60 days prior to the Redemption Date fixed by the Corporation (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee in writing of such Redemption Date, of the principal amount of Securities of such series
to be redeemed and, if applicable, of the tenor of the Securities to be redeemed and provide the additional information required to be included in the notice or notices contemplated by Section 1104. In the case of any redemption of Securities
prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Corporation shall furnish the Trustee with an Officers’ Certificate evidencing compliance with such
restriction.
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SECTION 1103.
Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless all the Securities of such series and of a specified tenor are to be
redeemed), the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, pro rata, by lot or by such
method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of a portion of the principal amount of any Security of such series all in accordance with the procedures of the Depositary,
provided
that the unredeemed portion of the principal amount of any Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security. If less than all the Securities of such series and of a
specified tenor are to be redeemed (unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee or by the Depositary, as
applicable, from the Outstanding Securities of such series and specified tenor not previously called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Corporation in writing of the Securities selected for redemption as aforesaid and, in case of any
Securities selected for partial redemption as aforesaid, the principal amount thereof to be redeemed.
For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has
been or is to be redeemed.
SECTION 1104.
Notice of Redemption.
Notice of redemption shall be delivered not less than 30 nor more than 60 days prior to the Redemption Date (provided notice may be given
more than 60 days prior to the Redemption Date in connection with a defeasance or the satisfaction and discharge of the series), to each Holder of Securities to be redeemed, at his address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series consisting of more than a single Security
are to be redeemed, the identification (and, in the case of partial redemption of any such Securities, the principal amounts) of the particular Securities to be redeemed and, if less than all the Outstanding Securities of any series consisting of a
single Security are to be redeemed, the principal amount of the particular Security to be redeemed,
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(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date,
(5) the place or places where each such Security is to be surrendered for payment of the Redemption
Price and that the Securities called for redemption must be surrendered to the Paying Agent to collect the Redemption Price,
(6) that the redemption is for a sinking fund, if such is the case,
(7) CUSIP numbers, if any, and
(8) such other provisions as may be required in respect of the terms of a particular series of
Securities.
Notice of redemption of Securities to be redeemed at the election of the Corporation shall be given by the Corporation or, at
the Corporation’s request, by the Trustee in the name and at the expense of the Corporation and shall be irrevocable;
provided
, however, that, if delivery is to be made by the Trustee, the Corporation shall have delivered to the Trustee,
at least five Business Days (or such shorter period as may be agreed to by the Trustee) before notice of redemption is required to be sent to the Holders, the redemption notice and a request for the Trustee to make such delivery.
SECTION 1105.
Deposit of Redemption Price.
Prior to 10:00 a.m., New York City time, on the Redemption Date, the Corporation shall deposit with the Trustee or with a Paying Agent (or, if
the Corporation is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on that date.
SECTION 1106.
Securities Payable on Redemption
Date.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due
and payable at the Redemption Price therein specified, and from and after such date (unless the Corporation shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest. Upon surrender of
any such Security for redemption in accordance with said notice, such Security shall be paid by the Corporation at the Redemption Price, together with accrued interest to the Redemption Date;
provided, however,
that, unless otherwise
specified as contemplated by Section 301, installments of interest whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the provisions of Section 307.
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If any Security called for redemption shall not be so paid upon surrender thereof for redemption,
the principal and any premium shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.
SECTION 1107.
Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Corporation or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Corporation and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Corporation shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series and of like tenor, of any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
S
INKING
F
UNDS
SECTION 1201.
Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of any series except as otherwise
specified as contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the
terms of any Securities 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 such Securities is herein referred to as an “optional sinking fund
payment”. If provided for by the terms of any Securities, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Securities as
provided for by the terms of such Securities.
SECTION 1202.
Satisfaction of Sinking Fund Payments with Securities.
The Corporation (1) may deliver Outstanding Securities of a series (other than any previously called for redemption) and (2) may
apply as a credit Securities of a series which have been redeemed either at the election of the Corporation pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to any Securities of such series required to be made pursuant to the terms of such Securities as and to the extent provided for by the terms of such
Securities;
provided
that the Securities to be so credited have not been previously so credited. The Securities to be so credited shall be received and credited for such purpose by the Trustee at the Redemption Price, as specified in the
Securities so to be redeemed, for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
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SECTION 1203.
Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any series of Securities, the Corporation will deliver to the Trustee an
Officers’ Certificate specifying the amount of the next ensuing sinking fund payment for such Securities pursuant to the terms of such Securities, the portion thereof, if any, which is to be satisfied by payment of cash in the currency in which
the Securities of such series are payable (except as provided pursuant to Section 301) and the portion thereof, if any, that is to be satisfied by delivering and crediting Securities pursuant to Section 1202 and will also deliver to the
Trustee any Securities to be so delivered. Such Officers’ Certificate shall be irrevocable and upon its delivery the Corporation shall be obligated to make the cash payment or payments therein referred to, if any, on or before the succeeding
sinking fund payment date. In the case of the failure of the Corporation to deliver such Officers’ Certificate (or, as required by this Indenture, the Securities and coupons, if any, specified in such Officers’ Certificate) by the due date
therefor, the sinking fund payment due on the succeeding sinking fund payment date for such series shall be paid entirely in cash and shall be sufficient to redeem the principal amount of the Securities of such series subject to a mandatory sinking
fund payment without the right to deliver or credit securities as provided in Section 1202 and without the right to make the optional sinking fund payment with respect to such series at such time.
Any sinking fund payment or payments (mandatory or optional) made in cash plus any unused balance of any preceding sinking fund payments made
with respect to the Securities of any particular series shall be applied by the Trustee (or by the Corporation if the Corporation is acting as its own Paying Agent) on the sinking fund payment date on which such payment is made (or, if such payment
is made before a sinking fund payment date, on the sinking fund payment date immediately following the date of such payment) to the redemption of Securities of such series at the Redemption Price specified in such Securities with respect to the
sinking fund. Any sinking fund moneys not so applied or allocated by the Trustee (or, if the Corporation is acting as its own Paying Agent, segregated and held in trust by the Corporation as provided in Section 1003) for such series and
together with such payment (or such amount so segregated) shall be applied in accordance with the provisions of this Section 1203. Any and all sinking fund moneys with respect to the Securities of any particular series held by the Trustee (or
if the Corporation is acting as its own Paying Agent, segregated and held in trust as provided in Section 1003) on the last sinking fund payment date with respect to Securities of such series and not held for the payment or redemption of
particular Securities of such series shall be applied by the Trustee (or by the Corporation if the Corporation is acting as its own Paying Agent), together with other moneys, if necessary, to be deposited (or segregated) sufficient for the purpose,
to the payment of the principal of the Securities of such series at Maturity. The Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 1103 and the Corporation shall cause
notice of the redemption thereof to be given in the manner provided in Section 1104. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Section 1106.
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On or before each sinking fund payment date, the Corporation shall pay to the Trustee (or, if the Corporation is acting as its own Paying Agent, the Corporation shall segregate and hold in trust
as provided in Section 1003) in cash a sum in the currency in which Securities of such series are payable (except as provided pursuant to Section 301) equal to the principal (and premium, if any) and any interest (including any Additional
Interest) accrued to the Redemption Date for Securities or portions thereof to be redeemed on such sinking fund payment date pursuant to this Section 1203.
Neither the Trustee nor the Corporation shall redeem any Securities of a series with sinking fund moneys or send any notice of redemption of
Securities of such series by operation of the sinking fund for such series during the continuance of a default in payment of interest, if any, on any Securities of such series or of any Event of Default with respect to the Securities of such series,
except that if the notice of redemption shall have been provided in accordance with the provisions hereof, the Trustee (or the Corporation, if the Corporation is then acting as its own Paying Agent) shall redeem such Securities if cash sufficient
for that purpose shall be deposited with the Trustee (or segregated by the Corporation) for that purpose in accordance with the terms of this Article Twelve. Except as aforesaid, any moneys in the sinking fund for such series at the time when any
such default or Event of Default shall occur and any moneys thereafter paid into such sinking fund shall, during the continuance of such default or Event of Default, be held as security for the payment of the Securities and coupons, if any, of such
series; provided however, that in case such default or Event of Default shall have been cured or waived herein, such moneys shall thereafter be applied on the next sinking fund payment date for the Securities of such series on which such moneys may
be applied pursuant to the provisions of this Section 1203.
ARTICLE THIRTEEN
D
EFEASANCE
AND
C
OVENANT
D
EFEASANCE
SECTION 1301.
Corporation
’
s Option to Effect Defeasance or Covenant Defeasance.
The Corporation may elect, at its option at any time, to have Section 1302 or Section 1303 applied to any Securities or any series of
Securities, as the case may be, designated pursuant to Section 301 as being defeasible pursuant to such Section 1302 or 1303, in accordance with any applicable requirements provided pursuant to Section 301 and upon compliance with the
conditions set forth below in this Article. Any such election shall be evidenced by a Board Resolution or in another manner specified as contemplated by Section 301 for such Securities.
SECTION 1302.
Defeasance and Discharge.
Upon the Corporation’s exercise of its option (if any) to have this Section applied to any Securities or any series of Securities, as the
case may be, the Corporation shall be deemed to have been discharged from its obligations with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 1304 are
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satisfied (hereinafter called “Defeasance”). For this purpose, such Defeasance means that the Corporation shall be deemed to have paid and discharged the entire indebtedness represented
by such Securities and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Corporation, shall execute proper instruments acknowledging
the same), subject to the following which shall survive until otherwise terminated or discharged hereunder: (1) the rights of Holders of such Securities to receive, solely from the trust fund described in Section 1304 and as more fully set
forth in such Section, payments in respect of the principal of and any premium and interest on such Securities when payments are due, (2) the Corporation’s obligations with respect to such Securities under Sections 304, 305, 306, 1002
and 1003, (3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Corporation’s obligations with respect thereto and (4) this Article. Subject to compliance with this Article, the Corporation may
exercise its option (if any) to have this Section applied to any Securities or any series of Securities notwithstanding the prior exercise of its option (if any) to have Section 1303 applied to such Securities.
SECTION 1303.
Covenant Defeasance.
Upon the Corporation’s exercise of its option (if any) to have this Section applied to any Securities or any series of Securities, as the
case may be, (1) the Corporation shall be released from its obligations under Section 1008, and any covenants provided pursuant to Section 301(18), 901(2) or 901(7) for the benefit of the Holders of such Securities and (2) the
occurrence of any event specified in Sections 501(4) (with respect to Section 1008 and any such covenants provided pursuant to Section 301(18), 901(2) or 901(7)) shall be deemed not to be or result in an Event of Default, in each case with
respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 1304 are satisfied (hereinafter called “Covenant Defeasance”). For this purpose, such Covenant Defeasance means that,
with respect to such Securities, the Corporation may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such specified Section (to the extent so specified in the case of
Section 501(4)), whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such Section to any other provision herein or in any other document, but the remainder of this
Indenture and such Securities shall be unaffected thereby.
SECTION 1304.
Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 1302 or Section 1303 to any Securities or any series of
Securities, as the case may be:
(1) The Corporation shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee which satisfies the requirements contemplated by Section 609 and agrees to comply with the provisions of this Article applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely to, the benefits of the Holders of such Securities, (A) money in an amount, or (B) U.S. Government
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Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any
payment, money in an amount, or (C) a combination thereof, in each case 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, and which shall be applied by the Trustee (or any such other qualifying trustee) to pay and discharge, the principal of and any premium and interest on such Securities on the respective Stated Maturities, in accordance with the terms
of this Indenture and such Securities. As used herein, “U.S. Government Obligation” means (x) any security which is (i) a direct obligation of the United States of America for the payment of which the full faith and credit of the
United States of America is pledged or (ii) an obligation of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case (i) or (ii), is not callable or redeemable at the option of the issuer thereof, and (y) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any U.S. Government Obligation which is specified in Clause (x) above and held by such bank for the account of the holder of such depositary receipt, or with respect to any specific payment of
principal of or interest on any U.S. Government Obligation which is so specified and held,
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
depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of principal or interest evidenced by such depositary receipt.
(2) In the event of an election to have Section 1302 apply to any Securities or any series of
Securities, as the case may be, the Corporation shall have delivered to the Trustee an Opinion of Counsel stating that (A) the Corporation has received from, or there has been published by, the Internal Revenue Service a ruling or
(B) since the date of this instrument, there has been a change in the applicable federal income tax law, in either case (A) or (B) to the effect that, and based thereon such opinion shall confirm that, the Holders of such Securities will
not recognize gain or loss for federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to such Securities and will be subject to federal income tax on the same amount, in the same manner and at
the same times as would be the case if such deposit, Defeasance and discharge were not to occur.
(3) In the event of an election to have Section 1303 apply to any Securities or any series of
Securities, as the case may be, the Corporation shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Securities will not recognize gain or loss for federal income tax purposes as a result of the deposit
and Covenant Defeasance to be effected with respect to such Securities and will be subject to federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to
occur.
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(4) The Corporation shall have delivered to the Trustee an
Officers’ Certificate to the effect that neither such Securities nor any other Securities of the same series, if then listed on any securities exchange, will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both would become, an Event of Default with
respect to such Securities or any other Securities shall have occurred and be continuing at the time of such deposit or, with regard to any such event specified in Sections 501(1), (2) and (3), at any time during the period ending on the 90
th
day after the date of such deposit or, if longer, ending on the day following the expiration of the longest preference period applicable to the Corporation in respect of such deposit (it being
understood that the condition in this clause is a condition subsequent and shall not be deemed satisfied until the expiration of such period).
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest
within the meaning of the Trust Indenture Act (assuming all Securities are in default within the meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a
default under, any other agreement or instrument to which the Corporation is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit
constituting an investment company within the meaning of the Investment Company Act unless such trust shall be registered under such Act or exempt from registration thereunder.
(9) The Corporation shall have delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with.
SECTION 1305.
Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee or other qualifying trustee (solely for purposes of this Section and Section 1306, the Trustee and any such other trustee are referred to collectively as the “Trustee”) pursuant to Section 1304
in respect of any Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any such Paying Agent (including the Corporation
acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities, of all sums due and to become due thereon in respect of principal and any premium and interest, but money so held in trust need not be segregated from
other funds except to the extent required by law.
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The Corporation shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to Section 1304 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of
Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to the Corporation
from time to time upon Corporation Request any money or U.S. Government Obligations held by it as provided in Section 1304 with respect to any Securities 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 the Defeasance or Covenant Defeasance, as the case may be, with respect to such
Securities.
SECTION 1306.
Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations under this Indenture and such Securities from which the Corporation has been discharged or released
pursuant to Section 1302 or 1303 shall be revived and reinstated as though no deposit had occurred pursuant to this Article with respect to such Securities, until such time as the Trustee or Paying Agent is permitted to apply all money held in
trust pursuant to Section 1305 with respect to such Securities in accordance with this Article;
provided, however,
that if the Corporation makes any payment of principal of or any premium or interest on any such Security following such
reinstatement of its obligations, the Corporation shall be subrogated to the rights (if any) of the Holders of such Securities to receive such payment from the money so held in trust.
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I
N
W
ITNESS
W
HEREOF
, the parties hereto have caused
this Indenture to be duly executed as of the day and year first above written.
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FULTON FINANCIAL CORPORATION
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By:
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/s/ Philmer H. Rohrbaugh
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Name:
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Philmer H. Rohrbaugh
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Title:
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Senior Executive Vice President, Chief Operating Officer and Chief Financial Officer
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WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee
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By:
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/s/ Michael H. Wass
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Authorized Officer
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[Signature Page to
Senior Indenture]
