As filed with the Securities and Exchange Commission on March 16, 2015
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
FINANCIAL INSTITUTIONS, INC.
(Exact name of registrant as specified in its charter)
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New York |
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16-0816610 |
(State or other jurisdiction of
incorporation or organization) |
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(I.R.S. Employer
Identification No.) |
220 Liberty Street
Warsaw, New York 14569
(585) 786-1100
(Address,
including zip code, and telephone number, including area code, of registrants principal executive offices)
William L.
Kreienberg, Esq.
Executive Vice President and General Counsel
220 Liberty Street
Warsaw, New York 14569
(585) 786-1100
(Name,
address, including zip code and telephone number, including area code, of agent for service)
COPIES TO:
Craig S. Wittlin, Esq.
Alexander R. McClean, Esq.
Harter Secrest & Emery LLP
1600 Bausch & Lomb Place
Rochester, New York 14604
(585) 232-6500
Approximate date of
commencement of proposed sale of the securities to the public: From time to time after this registration statement becomes effective.
If the only
securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: ¨
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and
list the Securities Act registration statement number of the earlier effective registration statement for the same offering: ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same offering: ¨
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing
with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box: ¨
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or
additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box: ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Securities Exchange Act of 1934, as amended (the Exchange Act).
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Large accelerated filer |
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Accelerated filer |
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x |
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Non-accelerated filer |
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¨ (Do not check if a smaller reporting company) |
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Smaller reporting company |
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CALCULATION OF REGISTRATION FEE
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Title of each class of securities to be registered |
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Amount to be registered(1) |
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Proposed maximum offering price per share(1) |
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Proposed maximum aggregate offering price(1)(2) |
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Amount of registration fee |
Senior Debt Securities (3) |
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Subordinated Debt Securities (3) |
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Common stock, par value $0.01 per share (3) |
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Preferred Stock, par value $100.00 per share (3) |
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Depositary Shares (3) |
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Warrants (4) |
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Purchase Contracts (5) |
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Units (6) |
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Total |
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$100,000,000 |
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$100,000,000 |
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$11,620 |
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(1) |
Information as to each class of security has been omitted pursuant to General Instruction II.D of Form S-3 under the Securities Act. |
(2) |
Estimated for the sole purpose of computing the registration fee in accordance with Rule 457(o) under the Securities Act and exclusive of accrued interest, distributions and dividends, if any. |
(3) |
Such indeterminate principal amount of debt securities, preferred stock or common stock as may, from time to time, be issued (i) at indeterminate prices or (ii) without separate consideration upon conversion,
redemption, exercise or exchange of securities registered hereunder, to the extent any such securities are, by their terms, convertible into or exchangeable for other securities registered hereunder, or as shall be issuable pursuant to anti-dilution
provisions. In the event we elect to offer to the public fractional interests in our shares of preferred stock registered hereunder, depositary shares, evidenced by depositary receipts issued pursuant to a deposit agreement, will be distributed to
those persons purchasing fractional interests and the shares of preferred stock will be issued to the depositary under any such agreement. |
(4) |
Warrants may be sold separately or together with our debt securities, preferred stock, common stock or depositary shares. Includes an indeterminate number of our debt securities, shares of preferred stock, shares of
common stock or depositary shares to be issuable upon the exercise of warrants for such securities. |
(5) |
Such indeterminate number of purchase contracts as may, from time to time, be issued at indeterminate prices obligating holders to purchase from or sell to us, and obligating us to sell or purchase from the holders, a
specific number of our shares of common stock, preferred stock, debt securities or depositary shares at a future date or dates. |
(6) |
Such indeterminate number of units as may, from time to time, be issued at indeterminate prices, each representing ownership of one or more of the securities described herein. |
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the
registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until this registration
statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. We may not sell these securities until
the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not
permitted.
SUBJECT TO COMPLETION, dated March 16, 2015
PROSPECTUS
$100,000,000
Financial Institutions, Inc.
Debt Securities
Common Stock
Preferred
Stock
Depositary Shares
Warrants
Purchase
Contracts
Units
We may offer
and sell from time to time up to $100,000,000 of unsecured debt securities, which may consist of: notes, debentures, or other evidences of indebtedness; shares of common stock; shares of preferred stock; depositary shares; warrants to purchase other
securities; purchase contracts; and units consisting of any combination of the above securities. The debt securities and preferred stock may be convertible into or exchangeable for other securities of ours.
This prospectus provides you with a general description of the securities listed above. Each time we offer any securities pursuant to this
prospectus, we will provide a prospectus supplement and, if necessary, a pricing supplement that will contain specific information about the terms of that offering. The prospectus supplement may also add, update or change information contained in
this prospectus. This prospectus may not be used to offer or sell our securities without a prospectus supplement describing the method and terms of the offering. You should read this prospectus and any prospectus supplement together with the
information described under the heading Incorporation of Certain Information by Reference before you make your investment decision.
Our common stock is traded on the Nasdaq under the symbol FISI. On March 13, 2015, the last reported per share sale price of
our common stock was $23.44.
Investing in our common stock involves risk. You should carefully read the information included and
incorporated by reference into this prospectus for a discussion of the factors you should carefully consider in determining whether to invest in our securities, including the discussion of risks described under Risk Factors
on page 7 of this prospectus.
The offered
securities are not deposits or obligations of a bank or savings association and are not insured or guaranteed by the Federal Deposit Insurance Corporation or any other governmental agency.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this
prospectus is , 2015.
IMPORTANT NOTICE ABOUT INFORMATION PRESENTED IN THIS
PROSPECTUS AND THE ACCOMPANYING PROSPECTUS SUPPLEMENT
We may provide information to you about the securities we are offering in three separate documents that progressively provide more detail:
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this prospectus, which provides general information, some of which may not apply to your securities; |
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the accompanying prospectus supplement, which describes the terms of the securities, some of which may not apply to your securities; and |
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if necessary, a pricing supplement, which describes the specific terms of your securities. |
If
the terms of your securities vary among the pricing supplement, the prospectus supplement and the accompanying prospectus, you should rely on the information in the following order of priority:
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the pricing supplement, if any; |
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the prospectus supplement; and |
We include cross-references in this prospectus and the accompanying
prospectus supplement to captions in these materials where you can find further related discussions. The following Table of Contents and the Table of Contents included in the accompanying prospectus supplement provide the pages on which these
captions are located.
Unless indicated in the applicable prospectus supplement, we have not taken any action that would permit us to publicly sell these securities
in any jurisdiction outside the United States. If you are an investor outside the United States, you should inform yourself about, and comply with, any restrictions as to the offering of the securities and the distribution of this prospectus.
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TABLE OF CONTENTS
1
ABOUT THIS PROSPECTUS
This prospectus is part of a shelf registration statement on Form S-3 that we filed with the Securities and Exchange Commission,
or SEC. Under the shelf registration process, we may from time to time offer and sell the debt securities, common stock, preferred stock, depositary shares, warrants, purchase contracts, or units consisting of a combination of any of the securities
described in this prospectus in one or more offerings, up to a total dollar amount of $100,000,000. This prospectus provides a general description of the securities that we may offer and sell. Each time we offer these securities, we will provide a
prospectus supplement and, if necessary, a pricing supplement, containing specific information about the terms of the offer. The prospectus supplement and any pricing supplement may add, update or change the information contained in this prospectus.
If there is any inconsistency between the information in this prospectus and the applicable prospectus supplement, you should rely on the information in the prospectus supplement and any pricing supplement. Before investing in our securities, you
should carefully review this prospectus, any prospectus supplement and any pricing supplement, together with the additional information described under the heading Where You Can Find More Information.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
Statements in this prospectus that are based on other than historical data are forward-looking statements within the meaning of the Private
Securities Litigation Reform Act of 1995. Forward-looking statements provide current expectations or forecasts of future events and include, among others:
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statements with respect to the beliefs, plans, objectives, goals, guidelines, expectations, anticipations, and future financial condition, results of operations and performance of Financial Institutions, Inc. (the
parent or FII) and its subsidiaries (collectively the Company, we, our or us); and |
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statements preceded by, followed by or that include the words may, could, should, would, believe, anticipate, estimate,
expect, intend, plan, projects, or similar expressions. |
These
forward-looking statements are not guarantees of future performance, nor should they be relied upon as representing managements views as of any subsequent date. Forward-looking statements involve significant risks and uncertainties and actual
results may differ materially from those presented, either expressed or implied, in this prospectus, any prospectus supplement, and our Annual Report on Form 10-K for the fiscal year ended December 31, 2014 (the Form 10-K), which is
incorporated by reference into this prospectus, including, but not limited to, those presented in the Managements Discussion and Analysis of Financial Condition and Results of Operations. Factors that might cause such differences include, but
are not limited to:
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If we experience greater credit losses than anticipated, earnings may be adversely impacted; |
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Our tax strategies and the value of our deferred tax assets could adversely affect our operating results and regulatory capital ratios; |
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Geographic concentration may unfavorably impact our operations; |
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We depend on the accuracy and completeness of information about or from customers and counterparties; |
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Our insurance brokerage subsidiary is subject to risk related to the insurance industry; |
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We are subject to environmental liability risk associated with our lending activities; |
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Our indirect lending involves risk elements in addition to normal credit risk; |
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We are highly regulated and may be adversely affected by changes in banking laws, regulations and regulatory practices; |
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New or changing tax and accounting rules and interpretations could significantly impact our strategic initiatives, results of operations, cash flows, and financial condition; |
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Legal and regulatory proceedings and related matters could adversely affect us and banking industry in general; |
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A breach in security of our information systems, including the occurrence of a cyber incident or a deficiency in cyber security, may result in a loss of customer business or damage to our brand image; |
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We need to stay current on technological changes in order to compete and meet customer demands; |
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We rely on other companies to provide key components of our business infrastructure; |
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We use financial models for business planning purposes that may not adequately predict future results; |
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We may not be able to attract and retain skilled people; |
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Acquisitions may disrupt our business and dilute shareholder value; |
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We are subject to interest rate risk; |
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Our business may be adversely affected by conditions in the financial markets and economic conditions generally; |
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Our earnings are significantly affected by the fiscal and monetary policies of the federal government and its agencies; |
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The soundness of other financial institutions could adversely affect us; |
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We may be required to recognize an impairment of goodwill; |
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We operate in a highly competitive industry and market area; |
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Severe weather, natural disasters, acts of war or terrorism, and other external events could significantly impact our business; |
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Liquidity is essential to our businesses; |
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We may need to raise additional capital in the future and such capital may not be available on acceptable terms or at all; |
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We rely on dividends from our subsidiaries for most of our revenue; |
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We may not pay or may reduce the dividends on our common stock; |
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We may issue debt and equity securities or securities convertible into equity securities, any of which may be senior to our common stock as to distributions and in liquidation, which could dilute our current
shareholders or negatively affect the value of our common stock; |
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The market price of our common stock may fluctuate significantly in response to a number of factors; and |
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Our certificate of incorporation, our bylaws, and certain banking laws may have an anti-takeover effect. |
We caution readers not to place undue reliance on any forward-looking statements, which speak only as of the date made, and advise readers
that various factors, including those described above, could affect our financial performance and could cause our actual results or circumstances for future periods to differ materially from those anticipated or projected. See also Item 1A,
Risk Factors, in the Form 10-K, which is incorporated herein by reference, for further information. Except as required by law, we do not undertake, and specifically disclaim any obligation to publicly release any revisions to any forward-looking
statements to reflect the occurrence of anticipated or unanticipated events or circumstances after the date of such statements.
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FINANCIAL INSTITUTIONS, INC.
Financial Institutions, Inc. is a financial holding company organized in 1931 under the laws of New York State. We offer a broad array of
deposit, lending and other financial services to individuals, municipalities and businesses in Western and Central New York through our wholly-owned New York-chartered banking subsidiary, Five Star Bank (the Bank). The Bank has also
expanded its indirect lending network to include relationships with franchised automobile dealers in the Capital District of New York and Northern Pennsylvania. Additionally, the Bank has formed a wholly-owned subsidiary, Five Star REIT, Inc., which
is a special purpose real estate investment trust. We also offer insurance services through our wholly-owned insurance subsidiary, Scott Danahy Naylon, LLC, a full service insurance agency. Our executive offices are located at 220 Liberty Street,
Warsaw, New York.
Our Business Strategy
Our business strategy has been to maintain a community bank philosophy, which consists of focusing on and understanding the individualized
banking needs of individuals, municipalities and businesses of the local communities surrounding our banking centers. We believe this focus allows us to be more responsive to our customers needs and provide a high level of personal service
that differentiates us from larger competitors, resulting in long-standing and broad-based banking relationships. Our core customers are primarily comprised of small- to medium-sized businesses, individuals and community organizations who prefer to
build a banking relationship with a community bank that offers and combines high quality, competitively-priced banking products and services with personalized service. Because of our identity and origin as a locally operated bank, we believe that
our level of personal service provides a competitive advantage over larger banks, which tend to consolidate decision-making authority outside local communities.
A key aspect of our current business strategy is to foster a community-oriented culture where our customers and employees establish
long-standing and mutually beneficial relationships. We believe that we are well-positioned to be a strong competitor within our market area because of our focus on community banking needs and customer service, our comprehensive suite of deposit and
loan products typically found at larger banks, our highly experienced management team and our strategically located banking centers. A central part of our strategy is generating core deposits to support growth of a diversified and high-quality loan
portfolio.
REGULATION AND SUPERVISION
The Bank is a New York-chartered commercial bank and its deposit accounts are insured by the Deposit Insurance Fund (the DIF) of
the Federal Deposit Insurance Corporation (the FDIC). The Bank is a member of the Federal Reserve Bank and Federal Home Loan Bank systems and is regulated by the New York State Department of Financial Services (NYSDFS). The
Company and the Bank are subject to extensive regulation under federal and state laws. The regulatory framework is intended primarily for the protection of depositors, federal deposit insurance funds and the banking system as a whole and not for the
protection of shareholders and creditors. Asset growth, deposits, reserves, investments, loans, consumer law compliance, issuance of securities, payment of dividends, establishment of banking offices, mergers and consolidations, changes in control,
electronic funds transfer, management practices and other aspects of operations are subject to regulation by the appropriate federal and state supervisory authorities.
As a bank holding company, we are subject to the Bank Holding Company Act of 1956, as amended (BHCA), and the rules and
regulations of the Board of Governors of the Federal Reserve System (Federal Reserve Board). We are required to file reports with, and otherwise comply with the rules and regulations of the Federal Reserve Board and the SEC.
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The Bank must file reports with the NYSDFS and Federal Reserve Board concerning its activities
and financial condition, in addition to obtaining regulatory approvals before entering into certain transactions such as mergers with, or acquisitions of, other depositary institutions. Furthermore, the Bank is periodically examined by the NYSDFS
and the Federal Reserve Board to assess compliance with various regulatory requirements, including safety and soundness considerations. This regulation and supervision establishes a comprehensive framework of activities in which the Bank can engage,
and is intended primarily for the protection of the DIF and depositors rather than for the protection of security holders. The regulatory structure also gives the regulatory authorities extensive discretion in connection with their supervisory and
enforcement activities and examination policies, including policies with respect to the classification of assets and the establishment of loan loss allowances for regulatory purposes.
These regulatory authorities have extensive enforcement authority over the institutions that they regulate to prohibit or correct activities
that violate law, regulation or a regulatory agreement or which are deemed to be unsafe or unsound banking practices. Enforcement actions may include the appointment of a conservator or receiver, the issuance of a cease and desist order, the
termination of deposit insurance, the imposition of civil money penalties on the institution, its directors, officers, employees and institution-affiliated parties, the issuance of directives to increase capital, the issuance of formal and informal
agreements, the removal of or restrictions on directors, officers, employees and institution-affiliated parties, and the enforcement of any such mechanisms through restraining orders or other court actions. Any change in laws and regulations,
whether by the NYSDFS, the FDIC, the Federal Reserve Board or through legislation, could have a material adverse impact on us, our operations and our stockholders.
Because we are a holding company, our rights and the rights of our creditors and the holders of the securities we are offering under this
prospectus to participate in the assets of any of our subsidiaries upon the subsidiarys liquidation or reorganization will be subject to the prior claims of the subsidiarys creditors, except to the extent that we may ourselves be a
creditor with recognized claims against the subsidiary.
In addition, dividends, loans and advances from the Bank to us are restricted by
federal law.
The preceding was a brief summary of the regulatory framework applicable to us and our subsidiaries. For a more detailed
discussion of the material elements of the regulatory framework applicable to bank holding companies and their subsidiaries, and specific information relevant to us and the Bank, you should refer to the Form 10-K, and any other subsequent reports
filed by us with the SEC, which are incorporated by reference in this prospectus.
WHERE YOU CAN FIND MORE
INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the SEC. You may access and
read our SEC filings, including the complete registration statement and all of the exhibits to it, through the SECs website located at http://www.sec.gov. This site contains reports and other information that we file electronically with the
SEC. The registration statement and other reports or information can be inspected, and copies may be obtained, at the SECs Public Reference Room, 100 F Street, N.E., Washington, DC 20549. Information on the operation of the Public Reference
Room of the SEC may be obtained by calling the SEC at 1-800-SEC-0330.
We have filed a registration statement, of which this prospectus is
a part, and related exhibits with the SEC under the Securities Act of 1933, as amended (the Securities Act). This prospectus, filed as part of the registration statement, does not contain all of the information set forth in the
registration statement and its exhibits and schedules, portions of which have been omitted as permitted by the rules and regulations of the SEC. For further information about us and our securities, we refer you to the registration statement and its
exhibits and schedules. Statements in this prospectus about the contents of any contract, agreement or other documents are not
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necessarily complete and, in each instance, we refer you to the copy of such contract, agreement or document filed as an exhibit to the registration statement, with each such statement being
qualified in all respects by reference to the document to which it refers. You may inspect the registration statement and exhibits without charge at the SECs Public Reference Room or at the SECs web site listed above, and you may obtain
copies from the SEC at prescribed rates.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
THIS PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE THAT ARE NOT PRESENTED IN OR DELIVERED WITH THIS PROSPECTUS. YOU SHOULD RELY ONLY ON THE
INFORMATION CONTAINED IN THIS PROSPECTUS AND IN THE DOCUMENTS THAT WE HAVE INCORPORATED BY REFERENCE INTO THIS PROSPECTUS. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH INFORMATION THAT IS DIFFERENT FROM OR IN ADDITION TO THE INFORMATION
CONTAINED IN THIS DOCUMENT AND INCORPORATED BY REFERENCE INTO THIS PROSPECTUS.
We incorporate information into this prospectus by
reference, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus. We incorporate by reference the documents listed
below and all documents subsequently filed with the SEC pursuant to Section 13(a), 14 or 15(d) of the Exchange Act, after the date of this prospectus and prior to the date this offering is terminated or we issue all of the securities under this
prospectus:
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Our Annual Report on Form 10-K for the fiscal year ended December 31, 2014, filed on March 6, 2015. |
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Our Current Reports on Form 8-K filed on January 20, 2015 and February 25, 2015. |
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The description of our common stock set forth in the registration statement on Form 8-A, filed with the SEC on June 23, 1999. |
Nothing in this prospectus shall be deemed to incorporate information furnished, but not filed, with the SEC pursuant to Item 2.02 or
Item 7.01 of Form 8-K and corresponding information furnished under Item 9.01 of Form 8-K or included as an exhibit.
Information in this prospectus supersedes related information in the documents listed above and information in subsequently filed documents
supersedes related information in both this prospectus and the incorporated documents.
You may request orally or in writing, and we will
provide you with, a copy of these filings, at no cost, by calling us at (585) 786-1100 or by writing to us at the following address:
General Counsel
Financial
Institutions, Inc.
220 Liberty Street
Warsaw, New York 14569
These
filings and reports can also be found on our website, located at http://www.fiiwarsaw.com, by following the links to Investor Relations and SEC Filings.
The information contained on our website does not constitute a part of this prospectus.
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RISK FACTORS
Investing in our securities involves risks. Before making an investment decision, you should carefully consider the specific risks set forth
under the caption Risk Factors in the applicable prospectus supplement and under the caption Risk Factors in our filings with the SEC, which are incorporated by reference into this prospectus.
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth our historical ratio of earnings to fixed charges and our ratio of combined fixed charges and preferred stock
dividends to earnings. You should read this table in conjunction with the consolidated financial statements and notes to the consolidated financial statements that are incorporated by reference into this prospectus.
A statement setting forth details of the computation of the ratios below is included as Exhibit 12.1 to the registration statement.
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Years Ended December 31, |
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2014 |
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2013 |
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2012 |
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2011 |
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2010 |
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Ratio of Earnings to Fixed Charges |
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Including interest on deposits |
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5.94 |
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5.79 |
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4.63 |
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3.49 |
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2.68 |
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Excluding interest on deposits |
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26.49 |
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29.80 |
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31.88 |
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15.78 |
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10.17 |
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Ratio of Earnings to Combined Fixed Charges and Preferred Stock Dividends |
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Including interest on deposits |
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4.77 |
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4.54 |
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3.77 |
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2.90 |
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2.12 |
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Excluding interest on deposits |
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11.67 |
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11.23 |
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10.84 |
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7.12 |
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4.16 |
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We have computed the ratio of earnings to combined fixed charges and preferred stock dividends set forth above
by dividing pre-tax income before fixed charges and preferences by fixed charges and preference dividends. Fixed charges are the sum of:
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interest expensed and capitalized; |
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amortized premiums, discounts and capitalized expenses related to indebtedness; |
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an estimate of the interest within rental expense; and |
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preference security dividend requirements of consolidated subsidiaries. |
THE SECURITIES WE MAY OFFER
This prospectus contains a summary of the debt securities, common stock, preferred stock, depositary
shares, warrants, purchase contracts, and units that we may offer under this prospectus. The particular material terms of the securities offered by a prospectus supplement will be described in that prospectus supplement. The descriptions herein and
in the applicable prospectus supplement do not contain all of the information that you may find useful or that may be important to you. However, this prospectus, the prospectus supplement and the pricing supplement, if applicable, contain the
material terms and conditions for each security. The prospectus supplement will also contain information, where applicable, about material U.S. federal income tax considerations relating to the offered securities, and the securities exchange, if
any, on which the offered securities will be listed. You should read these documents as well as the documents filed as exhibits to or incorporated by reference to this registration statement. Capitalized terms used in this prospectus that are not
defined will have the meanings given them in these documents.
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DESCRIPTION OF DEBT SECURITIES
General
We may issue senior debt
securities or subordinated debt securities. Senior debt securities will be issued under an indenture, referred to as the senior indenture, and subordinated debt securities will be issued under a separate indenture, referred to in this
section as the subordinated indenture. The senior indenture and the subordinated indenture are collectively referred to in this section as the indentures. The senior debt securities and the subordinated debt securities are
collectively referred to in this section as the debt securities. The debt securities will be our direct unsecured general obligations.
This prospectus describes the general terms and provisions of the debt securities. When we offer to sell a particular series of debt
securities, we will describe the specific terms of the securities in a supplement to this prospectus. The prospectus supplement will also indicate whether the general terms and provisions described in this prospectus apply to a particular series of
debt securities.
The following briefly describes the general terms and provisions of the debt securities and the indentures. We have not
restated these indentures in their entirety in this description. We have filed the forms of the indentures, including the forms of debt securities, as exhibits to the registration statement of which this prospectus is a part. We urge you to read the
indentures, because they, and not this description, control your rights as holders of the debt securities. The following description of the indentures is not complete and is subject to, and qualified in its entirety by reference to, all the
provisions in the respective indentures. Capitalized terms used in the summary have the meanings specified in the indentures.
Neither
indenture limits the amount of debt securities that we may issue under the indenture from time to time in one or more series. We may in the future issue debt securities under either indenture. As of the date of this prospectus, we had not issued any
debt securities under either indenture.
Neither indenture contains provisions that would afford holders of debt securities protection in
the event of a sudden and significant decline in our credit quality or a takeover, recapitalization or highly leveraged or similar transaction. Accordingly, we could in the future enter into transactions that could increase the amount of
indebtedness outstanding at that time or otherwise adversely affect our capital structure or credit rating.
The debt securities will be
exclusively our obligations. Neither indenture requires our subsidiaries to guarantee the debt securities. As a result, the holders of debt securities will generally have a junior position to claims of all creditors and preferred shareholders of our
subsidiaries.
Terms of Each Series of Debt Securities Provided in the Prospectus Supplement
A prospectus supplement and any supplemental indenture relating to any series of debt securities being offered will include specific terms
relating to the offering. These terms will include some or all of the following:
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the form and title of the debt securities; |
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whether the debt securities are senior debt securities or subordinated debt securities and the terms of subordination; |
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the principal amount of the debt securities; |
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the denominations in which the debt securities will be issued; |
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the portion of the principal amount which will be payable if the maturity of the debt securities is accelerated; |
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the currency or currency unit in which the debt securities will be paid, if not U.S. dollars; |
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any right we may have to defer payments of interest by extending the dates payments are due and whether interest on those deferred amounts will be payable as well; |
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the place where the principal of, and premium, if any, and interest on any debt securities will be payable; |
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the date or dates on which the debt securities will be issued and the principal, and premium, if any, of the debt securities will be payable; |
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the rate or rates which the debt securities will bear interest and the interest payment dates for the debt securities; |
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any mandatory or optional redemption provisions; |
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the terms, if any, upon which the debt securities are convertible into other securities of ours or another issuer and the terms and conditions upon which any conversion will be effected, including the initial conversion
price or rate, the conversion period and any other provisions in addition to or instead of those described in this prospectus; |
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any sinking fund or other provisions that would obligate us to repurchase or otherwise redeem the debt securities; |
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any deletion from, changes of or additions to the covenants or the Events of Default (as defined below) under Provisions in Both Indentures Events of Default and Remedies; |
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any changes to the terms and conditions upon which the debt securities can be defeased or discharged; |
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any restriction or other provision with respect to the transfer or exchange of the debt securities; |
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the identity of any other trustee, paying agent and security registrar, if other than the trustee; and |
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any other terms of the debt securities. |
We will maintain in each place specified by us for
payment of any series of debt securities an office or agency where debt securities of that series may be presented or surrendered for payment, where debt securities of that series may be surrendered for registration of transfer or exchange and where
notices and demands to or upon us in respect of the debt securities of that series and the related indenture may be served.
Debt
securities may be issued under an indenture as original issue discount securities to be offered and sold at a substantial discount below their principal amount. Material federal income tax, accounting and other considerations applicable to any such
original issue discount securities will be described in any related prospectus supplement. 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 as a result of the occurrence of an Event of Default and the continuation thereof.
Provisions
Only in the Senior Indenture
Payment of the principal, premium, if any, and interest on the unsecured senior debt securities will rank
equally in right of payment with all of our other unsecured senior debt.
Provisions Only in the Subordinated Indenture
Payment of the principal, premium, if any, and interest on the subordinated debt securities will be unsecured and will be subordinate and
junior in priority of payment to prior payment in full of all of our senior indebtedness, including senior debt securities and other debt to the extent described in a prospectus supplement.
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Provisions in Both Indentures
Consolidation, Merger or Asset Sale
Each
indenture generally allows us to consolidate or merge with a domestic person, association or entity. They also allow us to sell, lease or transfer our property and assets substantially as an entirety to a domestic person, association or entity. If
this happens, the remaining or acquiring person, association or entity must assume all of our responsibilities and liabilities under the indentures including the payment of all amounts due on the debt securities and performance of the covenants in
the indentures.
However, we will only consolidate or merge with or into any other person, association or entity, or sell, lease or
transfer our assets substantially as an entirety according to the terms and conditions of the indentures, which require that:
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the remaining or acquiring person, association or entity is organized under the laws of the United States, any state within the United States or the District of Columbia; |
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the remaining or acquiring person, association or entity assumes our obligations under the indentures; and |
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immediately after giving effect to the transaction, no Default or Event of Default, as defined below, shall have occurred and be continuing. |
The remaining or acquiring person, association or entity will be substituted for us in the indentures with the same effect as if it had been
an original party to the indentures. Thereafter, the successor may exercise our rights and powers under the indentures, in our name or in its own name. If we sell or transfer all or substantially all of our assets, we will be released from all our
liabilities and obligations under any indenture and under the debt securities. If we lease all or substantially all of our assets, we will not be released from our obligations under the indentures.
Events of Default and Remedies
Pursuant
to the indentures, Default with respect to any series of debt securities means any event which is an Event of Default, or any event that, after notice is given or lapse of time or both, would become an Event of Default. The term
Event of Default with respect to any series of debt securities means any of the following:
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failure to pay the principal of or any premium on any debt security of that series when due; |
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failure to pay interest on any debt security of that series for 30 days; |
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subject to certain exceptions, failure to perform any other covenant in the indenture, other than a covenant default in the performance of which has expressly been included in the indenture solely for the benefit of
series of debt securities other than that series, that continues for 90 days after being given written notice as specified in the indenture; |
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our bankruptcy, insolvency or reorganization; or |
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any other Event of Default included in any indenture or supplemental indenture. |
If an Event
of Default with respect to a series of debt securities occurs and is continuing, the trustee or the holders of at least 25% in principal amount of all of the outstanding debt securities of a particular series may declare the principal of all the
debt securities of that series to be due and payable. When such declaration is made, such amounts will be immediately due and payable. The holders of a majority in principal amount of the outstanding debt securities of such series may rescind such
declaration and its consequences if all existing Events of Default have been cured or waived, other than nonpayment of principal or interest that has become due solely as a result of acceleration. Upon a bankruptcy event of us, the principal amount
of all debt securities shall be immediately due and payable.
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Holders of a series of debt securities may not enforce the indenture or the series of debt
securities, except as provided in the indenture or a series of debt securities. The trustee may require indemnity satisfactory to it before it enforces the indenture or such series of debt securities. Subject to certain limitations, the holders of a
majority in principal amount of the outstanding debt securities of a particular series may direct the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising any trust or power of the trustee. The
trustee may withhold notice to the holders of debt securities of any default, except in the payment of principal or interest, if it considers such withholding of notice to be in the best interests of the holders.
An Event of Default for a particular series of debt securities does not necessarily constitute an Event of Default for any other series of
debt securities issued under an indenture. Further, an Event of Default under the debt securities of any series will not necessarily constitute an event of default under our other indebtedness or vice versa.
Modification of Indentures
Under each
indenture, generally we and the trustee may modify our rights and obligations and the rights of the holders with the consent of the holders of a majority in aggregate principal amount of the outstanding debt securities of any series affected by the
modification, voting as one class. No modification of the principal or interest payment terms, no modification reducing the percentage required for modifications and no modification impairing the right to institute suit for the payment on debt
securities of any series when due, is effective against any holder without its consent.
In addition, we and the trustee may amend the
indentures without the consent of any holder of the debt securities to make certain technical changes, such as:
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curing ambiguities or correcting defects or inconsistencies; |
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evidencing the succession of another person to us, and the assumption by that successor of our obligations under the applicable indenture and the debt securities of any series; |
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providing for a successor trustee; |
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qualifying the indentures under the Trust Indenture Act of 1939, as amended, which we refer to in this prospectus as the Trust Indenture Act; |
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complying with the rules and regulations of any securities exchange or automated quotation system on which debt securities of any series may be listed or traded; or |
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adding provisions relating to a particular series of debt securities. |
Discharging Our Obligations
We may choose either to discharge our obligations on the debt securities of any series in a legal defeasance, or to release ourselves from our
covenant restrictions on the debt securities of any series in a covenant defeasance. We may do so at any time on the 91st day after we deposit with the trustee sufficient cash or government securities to pay the principal, interest, any premium and
any other sums due to the stated maturity date or a redemption date of the debt securities of the series. If we choose the legal defeasance option, the holders of the debt securities of the series will not be entitled to the benefits of the
indenture except for registration of transfer and exchange of debt securities, replacement of lost, stolen or mutilated debt securities, conversion or exchange of debt securities, sinking fund payments and receipt of principal and interest on the
original stated due dates or specified redemption dates.
We may discharge our obligations on the debt securities of any series or release
ourselves from covenant restrictions only if we meet certain requirements. Among other things, we must deliver an opinion of our legal counsel that the discharge will not result in holders having to recognize taxable income or loss or subject them
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different tax treatment. In the case of legal defeasance, this opinion must be based on either an IRS letter ruling or change in federal tax law. We may not have a default on the debt securities
discharged on the date of deposit. The discharge may not violate any of our agreements. The discharge may not result in our becoming an investment company in violation of the Investment Company Act of 1940.
Information Concerning the Indenture Trustee
We will designate a trustee under the senior indenture and the subordinated indenture before the issuance of the debt securities.
Under provisions of the indentures and the Trust Indenture Act governing trustee conflicts of interest, any uncured Event of Default with
respect to any series of senior or subordinated debt securities will force the trustee to resign as trustee under either the subordinated indenture or the senior indenture. Any resignation will require the appointment of a successor trustee under
the applicable indenture in accordance with its terms and conditions.
The trustee may resign or be removed by us with respect to one or
more series of debt securities and a successor trustee may be appointed to act with respect to any such series. The holders of a majority in aggregate principal amount of the debt securities of any series may remove the trustee with respect to the
debt securities of such series.
Each indenture contains certain limitations on the right of the trustee thereunder, if it becomes our
creditor, to obtain payment of claims in some cases, or to realize on property received in respect of any such claim, as security or otherwise.
The trustee is required to submit an annual report to the holders of the debt securities regarding, among other things, the trustees
eligibility to serve, the priority of the trustees claims regarding certain advances made by it, and any action taken by the trustee materially affecting the debt securities.
Each indenture provides that, in addition to other certificates or opinions that may be specifically required by other provisions of an
indenture, every application by us for action by the trustee shall be accompanied by a certificate of our officers and an opinion of counsel, who may be our counsel, stating that, in the opinion of the signers, we have complied with all conditions
precedent to the action.
Governing Law
The indentures are and the debt securities will be governed by the laws of the State of New York.
No Personal Liability of Officers, Directors, Employees or Shareholders
Our officers, directors, employees and shareholders will not have any liability for our obligations under the indentures or the debt securities
by way of his or her status. Each holder of debt securities, by accepting a debt security, waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the debt securities.
Form, Denominations and Registration; Global Securities; Book Entry Only System
Unless otherwise indicated in a prospectus supplement, the debt securities of a series will be issued only in fully registered form, without
coupons, in minimum denominations of $1,000 or integral multiples in excess thereof. You will not have to pay a service charge to transfer or exchange debt securities of a series, but we may require you to pay for taxes or other governmental charges
due upon a transfer or exchange.
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Unless otherwise indicated in a prospectus supplement, each series of debt securities will be
deposited with, or on behalf of, The Depository Trust Company, or DTC, or any successor depositary, which we call a depositary, and will be represented by one or more global notes registered in the name of Cede & Co., as nominee
of DTC. The interests of beneficial owners in the global notes will be represented through financial institutions acting on their behalf as direct or indirect participants in DTC.
Ownership of beneficial interests in a global note will be limited to persons, called participants, who have accounts with DTC or persons who
hold interests through participants. Ownership of beneficial interests in the global notes will be shown on, and the transfer of these ownership interests will be effected only through, records maintained by DTC or its nominee (with respect to
interests of participants) and the records of participants (with respect to interests of persons other than participants).
So long as
DTC, or its nominee, is the registered owner or holder of a global note, DTC or such nominee, as the case may be, will be considered the sole owner or holder of the debt securities of that series represented by such global note for all purposes of
the indenture, the debt securities of that series and applicable law. In addition, no beneficial owner of an interest in a global note will be able to transfer that interest except in accordance with DTCs applicable procedures, in addition to
those under the applicable indenture.
Payments on debt securities represented by global notes will be made to DTC or its nominee, as the
registered owner thereof. Neither we, the trustee, any underwriter nor any paying agent will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in global
notes, for maintaining, supervising or reviewing any records relating to such beneficial ownership interests or for any action taken or omitted to be taken by the depositary or any participant.
We expect that DTC or its nominee will credit participants accounts on the payable date with payments in respect of a global note in
amounts proportionate to their respective beneficial interest in the principal amount of such global note as shown on the records of DTC or its nominee, unless DTC has reason to believe that it will not receive payment on the payable date. We also
expect that payments by participants to owners of beneficial interests in such global note held through such participants will be governed by standing instructions and customary practices, as is now the case with securities held for the accounts of
customers registered in street name. Such payments will be the responsibility of such participants.
Transfers between
participants in DTC will be effected in accordance with DTC rules. The laws of some states require that certain persons take physical delivery of securities in definitive form. Consequently, the ability to transfer beneficial interests in a global
note to such persons may be impaired. Because DTC can only act on behalf of participants, who in turn act on behalf of others, such as securities brokers and dealers, banks and trust companies, called indirect participants, the ability of a person
having a beneficial interest in a global note to pledge that interest to persons or entities that do not participate in the DTC system, or otherwise take actions in respect of that interest, may be impaired by the lack of a physical certificate of
that interest.
DTC will take any action permitted to be taken by a holder of debt securities of a series only at the direction of one or
more participants to whose account interests in global notes are credited and only in respect of such portion of the aggregate principal amount of the debt securities of a series as to which such participant or participants has or have given such
direction.
If: (1) the depositary notifies us that it is unwilling or unable to continue as depositary or if the depositary ceases
to be eligible under the applicable indenture and a successor depositary is not appointed by us within 90 days; or (2) an Event of Default with respect to a series of debt securities shall have occurred and be continuing, the respective
global notes representing the affected series of debt securities will be exchanged for debt securities in definitive form of like tenor and of an equal aggregate principal amount, in authorized denominations. Such definitive debt securities will be
registered in such name or names as the depositary instructs the trustee. Such instructions will most likely be based upon directions received by the depositary from participants with respect to ownership of beneficial interests in global notes.
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DTC is a limited-purpose trust company organized under the New York Banking Law, a banking
organization within the meaning of the New York Banking Law, a member of the Federal Reserve, a clearing corporation within the meaning of the New York Uniform Commercial Code and a clearing agency registered pursuant
to the provisions of Section 17A of the Exchange Act. DTC holds securities that its participants deposit with DTC and facilitates the settlement among participants of securities transactions, such as transfers and pledges, in deposited
securities through electronic computerized book-entry changes in participants accounts, thereby eliminating the need for physical movement of securities certificates. Direct participants include securities brokers and dealers, banks, trust
companies, clearing corporations and certain other organizations. DTC is owned by a number of its direct participants, including those who may act as underwriters of our debt securities, and by the New York Stock Exchange, Inc., the NYSE MKT LLC and
the Financial Industry Regulatory Authority. Access to the DTC system is also available to others such as indirect participants that clear through or maintain a custodial relationship with a direct participant, either directly or indirectly. The
rules applicable to DTC and its participants are on file with the SEC.
Although DTC has agreed to the foregoing procedures to facilitate
transfers of interests in global notes among participants of DTC, it is under no obligation to perform or continue to perform such procedures, and such procedures may be discontinued at any time. Neither we, the trustee, any underwriter nor any
paying agent will have any responsibility for the performance by DTC or its participants or indirect participants of their respective obligations under the rules and procedures governing their operations.
DESCRIPTION OF COMMON STOCK
Introduction
The following section
describes the material features and rights of our Common Stock. The summary does not purport to be exhaustive and is qualified in its entirety by reference to our Certificate of Incorporation and our By-laws, each of which is filed as an exhibit to
the Registration Statement of which this prospectus is a part, and to applicable sections of the Business Corporation Law of the State of New York, which we refer to as the NYBCL.
General
We are authorized to issue up to
50,000,000 shares of Common Stock. Each share of Common Stock entitles the holder to the same rights, and is the same in all respects, as each other share of Common Stock. Holders of Common Stock are entitled to: (1) one vote per share on all
matters requiring a shareholder vote; (2) a ratable distribution of dividends, if and when, declared by the board of directors (the Board); and (3) in the event of a liquidation, dissolution or winding up of us, to share
ratably in all assets remaining after holders of shares of Preferred Stock have received the liquidation preference of their shares plus accumulated but unpaid dividends (whether or not earned or declared), if any, and after all of our other
indebtedness has been provided for or satisfied. Holders of Common Stock do not have cumulative voting rights with respect to the election of directors and have no preemptive rights to acquire any of our additional, unissued or treasury shares or
our securities convertible into or carrying a right to subscribe for or acquire our shares of capital stock. The shares of Common Stock, when issued in the manner described in this prospectus, will be fully paid and nonassessable.
Dividends
We have historically paid
regular quarterly cash dividends on our Common Stock and the Board presently intends to continue the payment of regular quarterly cash dividends, dependent upon our results of operations, tax considerations, capital requirements and subject to the
need for those funds for debt service and other purposes and the restrictions described below. The amount of future dividends will depend upon earnings, financial condition, capital requirements, other regulatory requirements and other factors, and
will be determined by our Board on a quarterly basis. We cannot guarantee that we will continue to pay dividends or that, if paid, we will not reduce or eliminate dividends in the future.
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New York State law applicable to the declaration of distributions by a business corporation also
limits our ability to declare and pay dividends. A corporation generally may not authorize and make distributions if, after giving effect thereto, it would be unable to meet its debts as they become due in the usual course of business or if the
corporations total assets would be less than the sum of its total liabilities plus the amount that would be needed, if it were to be dissolved at the time of distribution, to satisfy claims upon dissolution of shareholders who have rights
superior to the rights of the holders of its common stock.
In addition, as a bank holding company, our ability to declare and pay
dividends is subject to the guidelines of the Federal Reserve Board, which we refer to as the FRB, regarding capital adequacy and dividends. It is the policy of the FRB that bank holding companies should pay cash dividends on common stock only out
of income available over the past year, and only if prospective earnings retention is consistent with the holding companys expected future needs and financial condition. The policy provides that bank holding companies should not maintain a
level of cash dividends that undermines the bank holding companys ability to serve as a source of strength to its subsidiaries.
While we are a legal entity separate and distinct from our banking and other subsidiaries, these subsidiaries are the principal assets, and as
such, a substantial part of our operating funds and, for the foreseeable future, all of the funds available for the payment of dividends are derived from the Bank. The New York Banking Law provides that the Bank may not declare dividends during the
calendar year that exceed the sum of the Banks net income during the current calendar year and the retained net income of the prior two calendar years unless the dividend has been approved by the Superintendent of Banks of the State of New
York. Thus, future dividends will depend upon the earnings of the Bank, its financial condition and its need for funds. Capital adequacy requirements serve to limit the amount of dividends that may be paid by the Bank. Under federal law, the Bank
cannot pay a dividend if, after paying the dividend, the Bank will be undercapitalized. The Federal Deposit Insurance Corporation, which we refer to as the FDIC, may declare a dividend payment to be unsafe and unsound even though the
Bank would continue to meet its capital requirements after the dividend. Also, because the Company is a legal entity separate and distinct from its subsidiaries, our right to participate in the distribution of assets of any subsidiary upon the
subsidiarys liquidation or reorganization will be subject to the prior claims of the subsidiarys creditors. In the event of a liquidation or other resolution of an insured depository institution, the claims of depositors and other
general or subordinated creditors are entitled to a priority of payment over the claims of holders of any obligation of the institution to its shareholders, including any depository bank holding company (such as the Company) or any shareholder or
creditor thereof.
Holders of Common Stock are entitled to participate equally in dividends or other distributions when, as and if
declared by the Board out of funds legally available therefor. Subject to those regulatory restrictions described above, dividends may be paid in cash, property or common shares, unless we are insolvent or the dividend payment would render it
insolvent.
Transfer Agent & Registrar
The transfer agent and registrar for our Common Stock is American Stock Transfer & Trust Company.
Anti-takeover Effects of Certain Provisions in our Certificate, By-laws and the NYBCL
Some provisions of our Certificate of Incorporation, our By-laws, and the NYBCL may be deemed to have an anti-takeover effect and may
collectively operate to delay, defer or prevent a tender offer, a proxy contest or takeover attempt that a shareholder might consider in his or her best interest, including those attempts that might result in a premium over the market price for the
shares held by our shareholders. These provisions are intended to discourage certain types of coercive takeover practices and inadequate takeover bids. This also encourages persons seeking to acquire control of us to negotiate with us first. As a
result, shareholders who might desire to participate in such transactions may not have an opportunity to do so. In addition, these provisions will also render the removal of our Board or management more difficult. The following discussion is a
summary of certain material provisions of our Certificate of Incorporation and our By-laws, copies of which are filed as exhibits to the Registration Statement of which this prospectus is a part.
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Directors. The Board is divided into three classes. The members of each class are elected
for a term of three years and only one class of directors is elected annually. Thus, it would take at least two annual elections to replace a majority of our Board. Further, the By-laws impose notice and information requirements in connection with
the nomination by shareholders of candidates for election to the Board or a proposal by shareholders of business to be acted upon at an annual meeting of shareholders.
Advance Notice of Shareholder Proposals and Nominations. Our By-laws establish an advance notice procedure for shareholders to make
nominations of candidates for election as directors or to bring other business before any meeting of our shareholders. The shareholder notice procedure provides that only persons who are nominated by, or at the direction of, the Board, or by a
shareholder who has given timely written notice prior to the meeting at which directors are to be elected, will be eligible for election as directors and that, at a shareholders meeting, only such business may be conducted as has been brought
before the meeting by, or at the direction of, the Board or by a shareholder who has given timely written notice of such shareholders intention to bring such business before such meeting.
Under the shareholder notice procedure, for notice of shareholder nominations or other business to be made at a shareholders meeting to
be timely, such notice must be received by us not less than 60 nor more than 90 days prior to the meeting.
A shareholders notice to
us proposing to nominate a person for election as a director or proposing other business must contain certain information specified in the By-laws, including the identity and address of the nominating shareholder, a representation that the
shareholder is a record holder of our stock entitled to vote at the meeting and information regarding each proposed nominee or each proposed matter of business that would be required under the federal securities laws to be included in a proxy
statement soliciting proxies for the proposed nominee or the proposed matter of business.
The shareholder notice procedure may have the
effect of precluding a contest for the election of directors or the consideration of shareholder proposals if the proper procedures are not followed, and of discouraging or deterring a third party from conducting a solicitation of proxies to elect
its own slate of directors or to approve its own proposal, without regard to whether consideration of such nominees or proposals might be harmful or beneficial to us and our shareholders.
Restrictions on Call of Special Meetings. Our By-laws provide that special meetings of shareholders can only be called by the Board,
the President or the holders of at least a majority of the outstanding shares entitled to vote at the meeting.
Prohibition of
Cumulative Voting. The Certificate of Incorporation does not authorize cumulative voting for the election of directors.
Preferred
Stock Authorization. Our Board, without shareholder approval, has the authority under our Certificate of Incorporation to issue Preferred Stock with rights superior to the rights of the holders of Common Stock. As a result, Preferred Stock,
while not intended as a defensive measure against takeovers, could be issued quickly and easily, could adversely affect the rights of holders of Common Stock and could be issued with terms calculated to delay or prevent a change of control of the
Company or make removal of management more difficult.
DESCRIPTION OF PREFERRED STOCK
We are authorized to issue up to 210,000 shares of two classes of Preferred Stock, consisting of: 10,000 shares of Class A Preferred
Stock and 200,000 shares of Class B Preferred Stock. The Certificate of Incorporation provides that both classes of Preferred Stock are issuable in one or more series. Two series of Class A Preferred Stock have been created, the Series A 3%
Preferred Stock (the 3% Preferred Stock) and the
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Fixed Rate Cumulative Perpetual Preferred Stock, Series A (the TARP Preferred Stock), and one series of Class B Preferred Stock has been created, the Series B-1 8.48% Preferred Stock
(the 8.48% Preferred Stock). At December 31, 2014, 1,492 shares of 3% Preferred Stock, 171,906 shares of 8.48% Preferred Stock and no shares of TARP Preferred Stock were issued.
Our Board may, in the future, designate additional series of Preferred Stock, and fix the relative rights, preferences and limitations of each
series. The authorized but unissued shares of our 3% Preferred Stock, 8.48% Preferred Stock, TARP Preferred Stock and any new series of Preferred Stock designated by the Board may be issued by the Board in the future.
3% Preferred Stock
Holders of 3%
Preferred Stock are entitled to receive an annual dividend of $3.00 per share, which is cumulative and payable quarterly. Holders of 3% Preferred Stock have no preemptive right in, or right to purchase or subscribe for, any additional shares of our
capital stock. Dividends or dissolution or liquidation payments to the holders of 3% Preferred Stock and TARP Preferred Stock must be declared and paid, or set apart for payment, before any dividends or dissolution or liquidation payments can be
declared and paid, or set apart for payment, to the holders of 8.48% Preferred Stock or Common Stock. The 3% Preferred Stock is not convertible into any other of our securities.
TARP Preferred Stock
On
December 23, 2008, pursuant to a Capital Purchase Program, we issued to the Treasury 7,503 shares of TARP Preferred Stock. In March 2011, we redeemed all outstanding shares of TARP Preferred Stock. We have no intent to issue any additional
shares of TARP Preferred Stock.
Holders of TARP Preferred Stock are entitled to receive an annual dividend of 5% for the first five years
from December 23, 2008 to, but excluding, February 15, 2014. From and after February 15, 2014, such rate will increase to 9% per annum thereafter, if, as and when declared by our Board out of funds legally available therefor.
Such dividends are cumulative and payable quarterly. Holders of TARP Preferred Stock have no preemptive right in, or right to purchase or subscribe for, any additional shares of our capital stock. The TARP Preferred Stock is not convertible into any
other of our securities.
Holders of TARP Preferred Stock will have no voting rights, except as otherwise from time to time required by
applicable law, and class voting rights on the following matters: (i) any authorization or issuance of shares ranking senior to the TARP Preferred Stock; (ii) any amendment to the rights of the TARP Preferred Stock; or (iii) any
merger, exchange or similar transaction which would adversely affect the rights of the TARP Preferred Stock. Any class vote held on these matters entitles each share of TARP Preferred Stock to one vote and requires approval of at least 66 2/3% of
the shares of TARP Preferred Stock outstanding at such time.
Dividends on the TARP Preferred Stock and the 3% Preferred Stock must be
declared and paid, or set apart for payment, before any dividends can be declared and paid, or set apart for payment, to the holders of 8.48% Preferred Stock or Common Stock. If dividends on the TARP Preferred Stock are not paid in full for six
dividend periods, whether or not consecutive, the authorized number of our directors shall automatically be increased by two and the holders of the TARP Preferred Stock shall have the right, with holders of shares of any stock ranking on parity with
the TARP Preferred Stock, voting together as a class, to elect two directors to fill such newly created directorships at our next annual meeting of shareholders (or at a special meeting called for that purpose prior to such next annual meeting) and
at each subsequent annual meeting of shareholders until all accrued and unpaid dividends for all past dividend periods have been declared and paid in full at which time such right shall terminate.
17
8.48% Preferred Stock
Holders of 8.48% Preferred Stock are entitled to receive an annual dividend of $8.48 per share, which is cumulative and payable quarterly.
Holders of 8.48% Preferred Stock have no preemptive right in, or right to purchase or subscribe for, any additional shares of our capital stock and have no voting rights. Accumulated dividends on the 8.48% Preferred Stock do not bear interest, and
the 8.48% Preferred Stock is not subject to redemption. Dividends or dissolution payments to the holders of 8.48% Preferred Stock must be declared and paid, or set apart for payment, before any dividends or dissolution payments are declared and
paid, or set apart for payment, to the holders of Common Stock. The 8.48% Preferred Stock is not convertible into any other of our securities.
DESCRIPTION OF DEPOSITARY SHARES
General
We may, at our option, elect to
offer fractional shares of preferred stock, which we call depositary shares, rather than full shares of preferred stock. If we do, we will issue to the public receipts, called depositary receipts, for depositary shares, each of which will represent
a fraction, to be described in the prospectus supplement, of a share of a particular series of preferred stock.
The shares of any series
of preferred stock represented by depositary shares will be deposited with a depositary named in the prospectus supplement. Unless otherwise provided in the prospectus supplement, each owner of a depositary share will be entitled, in proportion to
the applicable fractional interest in a share of preferred stock represented by the depositary share, to all the rights and preferences of the preferred stock represented by the depositary share. Those rights include dividend, voting, redemption,
conversion and liquidation rights.
Dividends and Other Distributions
The depositary will distribute all cash dividends or other cash distributions received in respect of the preferred stock to the record holders
of depositary shares in proportion to the numbers of depositary shares owned by those holders.
If there is a distribution other than in
cash, the depositary will distribute property received by it to the record holders of depositary shares, unless the depositary determines that it is not feasible to make the distribution. If this occurs, the depositary may, with our approval, sell
the property and distribute the net proceeds from the sale to the holders.
Withdrawal of Stock
Unless the related depositary shares have been previously called for redemption, upon surrender of the depositary receipts at the office of the
depositary, the holder of the depositary shares will be entitled to delivery, at the office of the depositary to or upon his or her order, of the number of whole shares of the preferred stock and any money or other property represented by the
depositary shares. If the depositary receipts delivered by the holder evidence a number of depositary shares in excess of the number of depositary shares representing the number of whole shares of preferred stock to be withdrawn, the depositary will
deliver to the holder at the same time a new depositary receipt evidencing the excess number of depositary shares. In no event will the depositary deliver fractional shares of preferred stock upon surrender of depositary receipts.
18
Redemption of Depositary Shares
Whenever we redeem shares of preferred stock held by the depositary, the depositary will redeem as of the same redemption date the number of
depositary shares representing shares of the preferred stock so redeemed, so long as we have paid in full to the depositary the redemption price of the preferred stock to be redeemed plus an amount equal to any accumulated and unpaid dividends on
the preferred stock to the date fixed for redemption. The redemption price per depositary share will be equal to the redemption price and any other amounts per share payable on the preferred stock multiplied by the fraction of a share of preferred
stock represented by one depositary share. If less than all the depositary shares are to be redeemed, the depositary shares to be redeemed will be selected by lot or pro rata or by any other equitable method as may be determined by the depositary.
After the date fixed for redemption, depositary shares called for redemption will no longer be deemed to be outstanding and all rights of
the holders of depositary shares will cease, except the right to receive the moneys payable upon redemption and any money or other property to which the holders of the depositary shares were entitled upon redemption upon surrender to the depositary
of the depositary receipts evidencing the depositary shares.
Voting the Depositary Shares
Upon receipt of notice of any meeting at which the holders of the preferred stock are entitled to vote, the depositary will mail the
information contained in the notice of meeting to the record holders of the depositary receipts relating to that preferred stock. The record date for the depositary receipts relating to the preferred stock will be the same date as the record date
for the preferred stock. Each record holder of the depositary shares on the record date will be entitled to instruct the depositary as to the exercise of the voting rights pertaining to the number of shares of preferred stock represented by that
holders depositary shares. The depositary will endeavor, insofar as practicable, to vote the number of shares of preferred stock represented by the depositary shares in accordance with those instructions, and we will agree to take all action
which may be deemed necessary by the depositary in order to enable the depositary to do so. The depositary will not vote any shares of preferred stock except to the extent it receives specific instructions from the holders of depositary shares
representing that number of shares of preferred stock.
Charges of Depositary
We will pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangements. We will pay
charges of the depositary in connection with the initial deposit of the preferred stock and any redemption of the preferred stock. Holders of depositary receipts will pay other transfer and other taxes and governmental charges and such other charges
as are expressly provided in the deposit agreement to be for their accounts.
Resignation and Removal of Depositary
The depositary may resign at any time by delivering to us notice of its election to do so, and we may remove the depositary at any time. Any
resignation or removal of the depositary will take effect upon our appointment of a successor depositary and its acceptance of such appointment. The successor depositary must be appointed within 60 days after delivery of the notice of resignation or
removal and must be a bank or trust company having its principal office in the United States and having a combined capital and surplus of at least $50,000,000.
Notices
The depositary will forward to
holders of depositary receipts all notices, reports and other communications, including proxy solicitation materials received from us, which are delivered to the depositary and which we are required to furnish to the holders of the preferred stock.
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Limitation of Liability
Neither we nor the depositary will be liable if either of us is prevented or delayed by law or any circumstance beyond our control in
performing our obligations. Our obligations and those of the depositary will be limited to performance in good faith of our and their duties thereunder. We and the depositary will not be obligated to prosecute or defend any legal proceeding in
respect of any depositary shares or preferred stock unless satisfactory indemnity is furnished. We and the depositary may rely upon written advice of counsel or accountants, on information provided by persons presenting preferred stock for deposit,
holders of depositary receipts or other persons believed to be competent and on documents believed to be genuine.
DESCRIPTION OF WARRANTS
We may issue warrants to purchase debt securities, preferred stock, depositary shares or common stock. We
may offer warrants separately or together with one or more additional warrants, debt securities, preferred stock, depositary shares or common stock, or any combination of those securities in the form of units, as described in the appropriate
prospectus supplement. If we issue warrants as part of a unit, the accompanying prospectus supplement will specify whether those warrants may be separated from the other securities in the unit prior to the warrants expiration date. Below is a
description of certain general terms and provisions of the warrants that we may offer. Further terms of the warrants will be described in the prospectus supplement.
The applicable prospectus supplement will contain, where applicable, the following terms of and other information relating to the warrants:
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the specific designation and aggregate number of, and the price at which we will issue, the warrants; |
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the currency or currency units in which the offering price, if any, and the exercise price are payable; |
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the date on which the right to exercise the warrants will begin and the date on which that right will expire or, if you may not continuously exercise the warrants throughout that period, the specific date or dates on
which you may exercise the warrants; |
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any applicable anti-dilution provisions; |
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any applicable redemption or call provisions; |
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the circumstances under which the warrant exercise price may be adjusted; |
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whether the warrants will be issued in fully registered form or bearer form, in definitive or global form or in any combination of these forms, although, in any case, the form of a warrant included in a unit will
correspond to the form of the unit and of any security included in that unit; |
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any applicable material United States federal income tax consequences; |
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the identity of the warrant agent for the warrants and of any other depositaries, execution or paying agents, transfer agents, registrars or other agents; |
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the proposed listing, if any, of the warrants or any securities purchasable upon exercise of the warrants on any securities exchange; |
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the designation and terms of the debt securities, preferred stock, depositary shares or common stock purchasable upon exercise of the warrants; |
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the designation, aggregate principal amount, currency and terms of the debt securities that may be purchased upon exercise of the warrants; |
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if applicable, the designation and terms of the debt securities, preferred stock, depositary shares or common stock with which the warrants are issued and the number of warrants issued with each security;
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if applicable, the date from and after which the warrants and the related debt securities, preferred stock, depositary shares or common stock will be separately transferable; |
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the principal amount of debt securities, the number of shares of preferred stock, the number of depositary shares or the number of shares of common stock purchasable upon exercise of a warrant and the price at which
those shares may be purchased; |
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if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; |
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information with respect to book-entry procedures, if any; |
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whether the warrants are to be sold separately or with other securities as parts of units; and |
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any additional terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants. |
DESCRIPTION OF PURCHASE CONTRACTS
We may issue purchase contracts, including purchase contracts issued as part of a unit with one or more other securities, for the purchase or
sale of our debt securities, preferred stock, depositary shares or common stock. The price of our debt securities or price per share of common stock, preferred stock or depositary shares, as applicable, may be fixed at the time the purchase
contracts are issued or may be determined by reference to a specific formula contained in the purchase contracts. We may issue purchase contracts in such amounts and in as many distinct series as we wish.
The applicable prospectus supplement may contain, where applicable, the following information about the purchase contracts issued under it:
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whether the purchase contracts obligate the holder to purchase or sell, or both, our debt securities, common stock, preferred stock or depositary shares, as applicable, and the nature and amount of each of those
securities, or method of determining those amounts; |
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whether the purchase contracts are to be prepaid or not; |
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whether the purchase contracts are to be settled by delivery, or by reference or linkage to the value, performance or level of our common stock or preferred stock; |
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any acceleration, cancellation, termination or other provisions relating to the settlement of the purchase contracts; |
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United States federal income tax considerations relevant to the purchase contracts; and |
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whether the purchase contracts will be issued in fully registered global form. |
The applicable prospectus supplement will describe the terms of any purchase contracts. The preceding description and any description of
purchase contracts in the applicable prospectus supplement does not purport to be complete and is subject to and is qualified in its entirety by reference to the purchase contract agreement and, if applicable, collateral arrangements and depositary
arrangements relating to such purchase contracts.
DESCRIPTION OF UNITS
We may issue units comprised of two or more of the other securities described in this prospectus in any combination. Each unit will be issued
so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each included security. The unit agreement under which a unit is issued may
provide that the securities included in the unit may not be held or transferred separately, at any time or at any time before a specified date.
21
The applicable prospectus supplement may describe:
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the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately; |
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any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units; |
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the terms of the unit agreement governing the units; |
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United States federal income tax considerations relevant to the units; and |
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whether the units will be issued in fully registered or global form. |
The preceding
description and any description of units in the applicable prospectus supplement does not purport to be complete and is subject to and is qualified in its entirety by reference to the form of unit agreement which will be filed with the SEC in
connection with the offering of such units, and, if applicable, collateral arrangements and depositary arrangements relating to such units.
USE OF PROCEEDS
We intend to use the net proceeds from the sale of the securities for general corporate purposes unless otherwise indicated in the prospectus
supplement relating to a specific issue of securities. Our general corporate purposes will likely include support for organic growth, and may also include, among other things, financing possible acquisitions of branches or other financial
institutions, diversification into other banking-related businesses, extending credit to, or funding investments in, our subsidiaries, repaying, reducing or refinancing indebtedness, or repurchasing our outstanding common stock. The prospectus
supplement with respect to an offering of securities may identify different or additional uses for the proceeds of such offering.
The
precise amounts and the timing of our use of the net proceeds will depend upon market conditions, our subsidiaries funding requirements, the availability of other funds and other factors. Until we use the net proceeds from the sale of any of
the securities for general corporate purposes, we will use the net proceeds to reduce our indebtedness or for temporary investments. We expect that we will, on a recurrent basis, engage in additional financings as the need arises to finance our
corporate strategies to support our growth, to fund our subsidiaries, or otherwise.
PLAN OF DISTRIBUTION
We may sell our securities in any of the following ways:
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to or through underwriters |
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through broker-dealers (acting as agent or principal); |
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directly by us to purchasers, through a specific bidding or auction process or otherwise; or |
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through a combination of any such methods of sale. |
Each time that we use this prospectus to
sell our securities, we will also provide a prospectus supplement that contains the specific terms of such offering. The prospectus supplement will set forth the terms of the offering of such securities, including:
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the name or names of any underwriters, dealers or agents and the type and amounts of securities underwritten or purchased by each of them; |
22
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the public offering price of the securities and the proceeds to us and any discounts, commissions or concessions allowed or reallowed or paid to underwriters, dealers or agents; |
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any exchange on which the securities will be issued; and |
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all other items constituting underwriting compensation. |
If we use underwriters in the sale of
any securities on a firm commitment basis, the securities will be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price
or at varying prices determined at the time of sale. The securities may be either offered to the public through underwriting syndicates represented by managing underwriters, or directly by underwriters. Generally, the underwriters obligations
to purchase the securities will be subject to certain conditions precedent. The underwriters will be obligated to purchase all of the securities if they purchase any of the securities. We may also engage underwriters on a best efforts basis.
We may sell the securities through agents from time to time. The prospectus supplement will name any agent involved in the offer or sale of
our securities and any commissions we pay to them. Generally, any agent will be acting on a best efforts basis for the period of its appointment.
To the extent that we make sales to or through one or more underwriters or agents in at-the-market offerings, we will do so pursuant to the
terms of a distribution agreement between us and the underwriters or agents. If we engage in at-the-market sales pursuant to a distribution agreement, we will issue and sell shares of our common stock to or through one or more underwriters or
agents, which may act on an agency basis or on a principal basis. During the term of any such agreement, we may sell shares on a daily basis in exchange transactions or otherwise as we agree with the underwriters or agents. The distribution
agreement will provide that any shares of our common stock sold will be sold at prices related to the then prevailing market prices for our common stock. Therefore, exact figures regarding proceeds that will be raised or commissions to be paid
cannot be determined at this time and will be described in a prospectus supplement. Pursuant to the terms of the distribution agreement, we also may agree to sell, and the relevant underwriters or agents may agree to solicit offers to purchase,
blocks of our common stock or other securities. The terms of each such distribution agreement will be set forth in more detail in a prospectus supplement to this prospectus. If any underwriter or agent acts as principal, or broker dealer acts as
underwriter, it may engage in certain transactions that stabilize, maintain or otherwise affect the price of our securities. We will describe any such activities in the prospectus supplement relating to the transaction.
In the sale of the securities, underwriters or agents may receive compensation from us in the form of underwriting discounts or commissions
and may also receive compensation from purchasers of the securities, for whom they may act as agents, in the form of discounts, concessions or commissions. Underwriters may sell the securities to or through dealers, and such dealers may receive
compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for whom they may act as agents. Discounts, concessions and commissions may be changed from time to time. Dealers and
agents that participate in the distribution of the securities may be deemed to be underwriters under the Securities Act, and any discounts, concessions or commissions they receive from us and any profit on the resale of securities they realize may
be deemed to be underwriting compensation under applicable federal and state securities laws.
We may authorize underwriters, dealers or
agents to solicit offers by certain purchasers to purchase our securities at the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the
future. The contracts will be subject only to those conditions set forth in the prospectus supplement, and the prospectus supplement will set forth any commissions or discounts we pay for solicitation of these contracts.
Agents and underwriters may be entitled to indemnification by us against certain civil liabilities, including liabilities under the Securities
Act of 1933, as amended, or to contribution with respect to payments which the
23
agents or underwriters may be required to make in respect thereof. Agents and underwriters may be customers of, engage in transactions with, or perform services for us in the ordinary course of
business.
We may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to third
parties in privately negotiated transactions. If the applicable prospectus supplement indicates in connection with those derivatives then the third parties may sell securities covered by this prospectus and the applicable prospectus supplement,
including in short sale transactions. If so, the third party may use securities pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings of stock, and may use securities received from us in
settlement of those derivatives to close out any related open borrowings of securities. The third party in such sale transactions will be an underwriter and will be identified in the applicable prospectus supplement (or a post-effective amendment).
Until the distribution of the securities is completed, rules of the SEC may limit the ability of any underwriters and selling group
members to bid for and purchase the securities. As an exception to these rules, underwriters are permitted to engage in some transactions that stabilize the price of the securities. Such transactions consist of bids or purchases for the purpose of
pegging, fixing or maintaining the price of the securities.
Underwriters may engage in overallotment. If an underwriter creates a short
position in offered securities by selling more securities than are set forth on the cover page of the applicable prospectus supplement, the underwriters may reduce that short position by purchasing the securities in the open market.
The lead underwriters may also impose a penalty bid on other underwriters and selling group members participating in an offering. This means
that if the lead underwriters purchase securities in the open market to reduce the underwriters short position or to stabilize the price of the securities, they may reclaim the amount of any selling concession from the underwriters and selling
group members who sold those securities as part of the offering.
If more than 10% of the net proceeds of any offering of securities made
under this prospectus will be received by Financial Industry Regulatory Authority (FINRA) members participating in the offering, or affiliates or associated persons of such FINRA members, the offering will be conducted in accordance with
FINRA Rule 5110.
LEGAL MATTERS
The validity of the securities offered hereby will be passed upon for us by Harter Secrest & Emery LLP, Rochester, N.Y.
EXPERTS
The consolidated financial statements of Financial Institutions, Inc. as of December 31, 2014 and 2013, and for each of the years in the
three-year period ended December 31, 2014, and managements assessment of the effectiveness of internal control over financial reporting as of December 31, 2014, have been incorporated by reference herein, in reliance upon the reports
of KPMG LLP, independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing.
24
$100,000,000
Financial Institutions, Inc.
Debt Securities
Common Stock
Preferred
Stock
Depositary Shares
Warrants
Purchase
Contracts
Units
Prospectus
, 2015
No dealer, salesperson or other person is authorized to give any information or to represent anything not contained in this prospectus. You
must not rely on any unauthorized information or representations. This prospectus is an offer to sell only the Securities offered hereby, but only under circumstances and in jurisdictions where it is lawful to do so. The information contained in
this prospectus is current only as of its date.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. |
Other Expenses of Issuance and Distribution. |
The expenses (other than underwriting
compensation) to be incurred by us in connection with the issuance and distribution of our common stock being registered hereby are:
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Securities and Exchange Commission filing fee |
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$ |
11,620 |
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Accounting fees and expenses |
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* |
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Legal fees and expenses |
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* |
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Printing fees |
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* |
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Miscellaneous |
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* |
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Total expenses |
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$ |
11,620 |
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* |
Estimated expenses are not presently known. The foregoing sets forth the general categories of expenses (other than underwriting discounts and commissions) that we anticipate we will incur in connection with the
offering of our securities under this registration statement. An estimate of the various expenses in connection with the issuance and distribution of our common stock being offered will be included in the applicable prospectus supplement.
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Item 15. |
Indemnification of Directors and Officers. |
We are incorporated under the Business
Corporation Law of the State of New York (the NYBCL).
Under the NYBCL, we have broad powers to indemnify our directors,
officers and other employees. The applicable sections of the NYBCL: (i) provide that the statutory indemnification and advancement of expenses provision of the NYBCL are not exclusive, provided that no indemnification may be made to or on
behalf of any director or officer if a judgment or other final adjudication adverse to the director or officer establishes that his acts were committed in bad faith or were the result of active and deliberate dishonesty and were material to the
cause of action is adjudicated, or that he personally gained in fact a financial profit or other advantage to which he was not legally entitled; (ii) establish procedures for indemnification and advancement of expenses that may be contained in
the certificate of incorporation or by-laws, or, when authorized by either of the foregoing, set forth in a resolution of the shareholders or directors of an agreement providing for indemnification and advancement of expenses; (iii) apply a
single standard for statutory indemnification for third-party and derivative suits by providing that indemnification is available if the director or officer acted in good faith, for a purpose which he reasonably believed to be in the best interests
of the corporation, and, in criminal actions, had no reasonable cause to believe that his conduct was unlawful; and (iv) permit the advancement of litigation expenses upon receipt of an undertaking to repay such advance if the director or
officer is ultimately determined not to be entitled to indemnification or to the extent the expenses advanced exceed the indemnification to which the director or officer is entitled. The NYBCL permits the purchase of insurance to indemnify a
corporation or its officers and directors to the extent permitted.
As permitted by the NYBCL, our Amended and Restated By-laws, provide
that we shall indemnify our officers and directors, as such, to the fullest extent permitted by applicable law, and that expenses reasonably incurred by any such officer or director in connection with a threatened or actual action or proceeding
shall be advanced or promptly reimbursed by us in advance of the final disposition of such action or proceeding upon receipt of an undertaking by or on behalf of such officer or director to repay such amount if and to the extent that it is
ultimately determined that such officer or director is not entitled to indemnification.
Article 7 of our Amended and Restated Certificate
of Incorporation, as amended, provides that none of our directors shall be held liable to us or our shareholders for damages for any breach of duty in his or her capacity as
II-1
a director unless a judgment or other final adjudication adverse to him or her establishes that (i) his or her acts or omissions were in bad faith or involved intentional misconduct or a
knowing violation of law, (ii) he or she personally gained in fact a financial profit or other advantage to which he or she as not legally entitled, or (iii) his or her acts violated Section 719 of the NYBCL.
In addition, we have purchased insurance policies that provide coverage for our directors and officers in certain situations where we cannot
directly indemnify such directors or officers.
Insofar as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers or persons controlling us pursuant to the foregoing provisions, we have been informed that in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the
Securities Act of 1933, as amended, and is therefore unenforceable.
II-2
Item 16. |
Exhibits and Financial Statement Schedules. |
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Exhibit No. |
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Description |
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** |
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1.1 |
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Form of Underwriting Agreement |
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4.1 |
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Amended and Restated Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.1 of the Form 10-K for the year ended December 31, 2008, dated March 12, 2009) |
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4.2 |
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Certificate of Amendment to the Certificate of Incorporation of the Company relating to the Series A Preferred Stock (incorporated by reference to Exhibit 3.2 of the Form 10-K for the year ended December 31, 2008, dated
March 12, 2009) |
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4.3 |
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Certificate of Amendment to the Certificate of Incorporation of the Company relating to the Series A 3% Preferred Stock (incorporated by reference to Exhibit 3.3 of the Form 10-K for the year ended December 31, 2008, dated
March 12, 2009) |
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4.4 |
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Amended and Restated Bylaws of the Company (incorporated by reference to Exhibit 3.4 of the Form 10-K for the year ended December 31, 2008, dated March 12, 2009) |
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* |
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4.5 |
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Form of Indenture for Senior Debt Securities (including form of Note for Senior Debt Securities) |
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* |
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4.6 |
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Form of Indenture for Subordinated Debt Securities (including form of Note for Subordinated Debt Securities) |
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** |
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4.7 |
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Form of Deposit Agreement (including Form of Depositary Share Certificate) with respect to Depositary Shares |
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4.8 |
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Form of Common Stock Certificate (incorporated herein by reference to Exhibit 4.1 to the Companys Registration Statement on Form S-1/A filed with the SEC on June 23, 1999 ) |
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** |
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4.9 |
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Form of Preferred Stock Certificate |
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** |
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4.10 |
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Form of Warrant Agreement (including Form of Warrant Certificate) with respect to Warrants to Purchase Debt Securities, Preferred Stock, Depositary Shares, Common Stock or Units. |
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** |
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4.10 |
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Form of Purchase Contract Agreement |
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** |
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4.11 |
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Form of Unit Agreement |
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* |
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5.1 |
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Opinion of Harter Secrest & Emery LLP |
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* |
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12.1 |
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Calculation of Consolidated Ratios of Earnings to Fixed Charges and Preferred Stock Dividends. |
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* |
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23.1 |
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Consent of KPMG |
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* |
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23.2 |
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Consent of Harter Secrest & Emery LLP (included in Exhibit 5.1 filed herewith) |
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* |
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24.1 |
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Power of Attorney (included in the signature page of this Registration Statement |
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* |
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25.1 |
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Form T-1 Statement of Eligibility of the Senior Indenture Trustee and the Subordinated Indenture Trustee |
** |
To be subsequently filed by an amendment to the Registration Statement or by a Current Report on Form 8-K and incorporated herein by reference. |
II-3
(a) The undersigned registrant hereby undertakes:
|
(1) |
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
|
(i) |
To include any prospectus required by section 10(a)(3) of the Securities Act of 1933, as amended (the Securities Act); |
|
(ii) |
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than 20 percent change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in the effective registration statement; and |
|
(iii) |
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
|
provided, however, that paragraphs (1)(a)(i), (1)(a)(ii) and (1)(a)(iii) do not apply if the registration
statement is on Form S-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
|
(2) |
That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
|
(3) |
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
|
(4) |
That, for the purpose of determining liability under the Securities Act to any purchaser: |
|
(i) |
each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration
statement; and |
|
(ii) |
each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration
statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes
of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the
offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the
|
II-4
|
registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to
a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document
immediately prior to such effective date. |
|
(5) |
That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering
of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
|
(i) |
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
|
(ii) |
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
|
(iii) |
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
|
|
(iv) |
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
|
(b) |
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrants annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act) (and, where applicable, each filing of an employee benefit plans annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof. |
|
(c) |
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by them is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. |
|
(d) |
The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in
accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Act. |
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Warsaw, State of New York, on this 16th day of March, 2015.
|
|
|
FINANCIAL INSTITUTIONS, INC. |
|
|
By: |
|
/s/ Martin K. Birmingham |
|
|
Martin K. Birmingham |
|
|
President and Chief Executive Officer |
II-6
POWER OF ATTORNEY
We, the undersigned directors and officers, do hereby severally constitute and appoint William L. Kreienberg and Kevin B. Klotzbach, and
each of them severally, our true and lawful attorneys-in-fact and agents, to do any and all acts and things in our name and on our behalf in our capacities as directors and officers and to execute any and all instruments for us and in our names in
the capacities indicated below, which said attorneys-in-fact and agents may deem necessary or advisable to enable Financial Institutions, Inc. to comply with the Securities Act of 1933, as amended (the Securities Act), and any rules,
regulations and requirements of the Securities and Exchange Commission, in connection with this registration statement on Form S-3, including specifically, but without limitation, power and authority to sign for us or any of us, in our names in the
capacities indicated below, any and all amendments (including pre- and post- effective amendments) hereto and any related registration statement and amendments thereto; and we do each hereby ratify and confirm all that said attorneys-in-fact and
agents shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration statement has
been signed by the following persons in the capacities and on the dates indicated.
|
|
|
|
|
Signatures |
|
Title |
|
Date |
|
|
|
/s/ Martin K. Birmingham
Martin K. Birmingham |
|
Director, President and Chief Executive Officer (Principal Executive Officer) |
|
March 16, 2015 |
|
|
|
/s/ Kevin B. Klotzbach
Kevin B. Klotzbach |
|
Executive Vice President, Chief Financial Officer and Treasurer (Principal Financial Officer) |
|
March 16, 2015 |
|
|
|
/s/ Michael D. Grover
Michael D. Grover |
|
Senior Vice President and Chief Accounting Officer (Principal Accounting Officer) |
|
March 16, 2015 |
|
|
|
/s/ Robert N. Latella
Robert N. Latella |
|
Chairman of the Board of Directors |
|
March 13, 2015 |
|
|
|
/s/ Karl V. Anderson Jr.
Karl V. Anderson Jr. |
|
Director |
|
March 13, 2015 |
|
|
|
/s/ John E. Benjamin
John E. Benjamin |
|
Director |
|
March 11, 2015 |
|
|
|
/s/ Andrew W. Dorn Jr.
Andrew W. Dorn Jr. |
|
Director |
|
March 16, 2015 |
|
|
|
/s/ Robert M. Glaser
Robert M. Glaser |
|
Director |
|
March 16, 2015 |
|
|
|
/s/ Samuel M. Gullo
Samuel M. Gullo |
|
Director |
|
March 13, 2015 |
|
|
|
/s/ Susan R. Holliday
Susan R. Holliday |
|
Director |
|
March 13, 2015 |
|
|
|
/s/ Erland E. Kailbourne
Erland E. Kailbourne |
|
Director |
|
March 16, 2015 |
II-7
|
|
|
|
|
Signatures |
|
Title |
|
Date |
|
|
|
/s/ James L. Robinson
James L. Robinson |
|
Director |
|
March 15, 2015 |
|
|
|
/s/ James H. Wyckoff
James H. Wyckoff |
|
Director |
|
March 13, 2015 |
II-8
EXHIBIT INDEX
|
|
|
Exhibit No. |
|
Description |
|
|
4.5 |
|
Form of Indenture for Senior Debt Securities (including form of Note for Senior Debt Securities) |
|
|
4.6 |
|
Form of Indenture for Subordinated Debt Securities (including form of Note for Subordinated Debt Securities) |
|
|
5.1 |
|
Opinion of Harter Secrest & Emery LLP |
|
|
12.1 |
|
Calculation of Consolidated Ratios of Earnings to Fixed Charges and Preferred Stock Dividends. |
|
|
23.1 |
|
Consent of KPMG |
|
|
23.2 |
|
Consent of Harter Secrest & Emery LLP (included in Exhibit 5.1 filed herewith) |
|
|
24.1 |
|
Power of Attorney (included in the signature page of this Registration Statement |
|
|
25.1 |
|
Form T-1 Statement of Eligibility of the Senior Indenture Trustee and the Subordinated Indenture Trustee |
II-9
Exhibit 4.5
FINANCIAL INSTITUTIONS, INC.
Issuer
and
WILMINGTON TRUST, NATIONAL ASSOCIATION
Trustee
INDENTURE
Dated as of , 20
SENIOR DEBT SECURITIES
FINANCIAL INSTITUTIONS, INC.
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 |
|
|
§301(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) |
|
1004 |
(b) |
|
Not Applicable |
(c)(1) |
|
102 |
(c)(2) |
|
102 |
(c)(3) |
|
Not Applicable |
(d) |
|
Not Applicable |
(e) |
|
102 |
§315(a) |
|
601; 603 |
(b) |
|
601 |
(c) |
|
601 |
(d) |
|
601 |
(e) |
|
514 |
§316(a) |
|
101 |
(a)(1)(A) |
|
501; 512 |
(a)(1)(B) |
|
513 |
(a)(2) |
|
Not Applicable |
(b) |
|
508 |
(c) |
|
104 |
§517(a)(1) |
|
503 |
(a)(2) |
|
504 |
(b) |
|
1003 |
§318(a) |
|
107 |
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.
i
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
|
|
1 |
|
|
|
|
Section 1.01 |
|
Definitions |
|
|
1 |
|
|
|
|
Section 1.02 |
|
Compliance Certificates and Opinions |
|
|
6 |
|
|
|
|
Section 1.03 |
|
Form of Documents Delivered to Trustee |
|
|
6 |
|
|
|
|
Section 1.04 |
|
Acts of Holders; Record Dates |
|
|
7 |
|
|
|
|
Section 1.05 |
|
Notices, Etc., to Trustee and the Company |
|
|
8 |
|
|
|
|
Section 1.06 |
|
Notice to Holders; Waiver |
|
|
8 |
|
|
|
|
Section 1.07 |
|
Conflict with Trust Indenture Act |
|
|
8 |
|
|
|
|
Section 1.08 |
|
Effect of Headings and Table of Contents |
|
|
8 |
|
|
|
|
Section 1.09 |
|
Successors and Assigns |
|
|
9 |
|
|
|
|
Section 1.10 |
|
Separability Clause |
|
|
9 |
|
|
|
|
Section 1.11 |
|
Benefits of Indenture |
|
|
9 |
|
|
|
|
Section 1.12 |
|
Governing Law |
|
|
9 |
|
|
|
|
Section 1.13 |
|
Legal Holidays |
|
|
9 |
|
|
|
|
Section 1.14 |
|
Language of Notices, Etc. |
|
|
9 |
|
|
|
|
Section 1.15 |
|
Interest Limitation |
|
|
9 |
|
|
|
|
Section 1.16 |
|
No Personal Liability of Officers, Directors, Employees or Shareholders |
|
|
10 |
|
|
|
|
Section 1.17 |
|
Applicability of Depositary |
|
|
10 |
|
|
|
|
Section 1.18 |
|
Force Majeure |
|
|
10 |
|
|
|
|
Section 1.19 |
|
U.S.A. Patriot Act |
|
|
10 |
|
|
|
ARTICLE II SECURITY FORMS |
|
|
11 |
|
|
|
|
Section 2.01 |
|
Forms Generally |
|
|
11 |
|
|
|
|
Section 2.02 |
|
Form of Face of Security |
|
|
11 |
|
|
|
|
Section 2.03 |
|
Form of Reverse of Security |
|
|
14 |
|
|
|
|
Section 2.04 |
|
Global Securities |
|
|
17 |
|
|
|
|
Section 2.05 |
|
Form of Trustees Certificate and Authorization |
|
|
18 |
|
|
|
ARTICLE III THE SECURITIES |
|
|
18 |
|
|
|
|
Section 3.01 |
|
Amount Unlimited; Issuable in Series |
|
|
18 |
|
|
|
|
Section 3.02 |
|
Denominations |
|
|
20 |
|
|
|
|
Section 3.03 |
|
Execution, Authentication, Delivery and Dating |
|
|
21 |
|
|
|
|
Section 3.04 |
|
Temporary Securities |
|
|
22 |
|
|
|
|
Section 3.05 |
|
Registration, Registration of Transfer and Exchange |
|
|
22 |
|
|
|
|
Section 3.06 |
|
Mutilated, Destroyed, Lost and Stolen Securities |
|
|
23 |
|
|
|
|
Section 3.07 |
|
Payment of Interest; Interest Rights Preserved |
|
|
24 |
|
|
|
|
Section 3.08 |
|
Persons Deemed Owners |
|
|
25 |
|
|
|
|
Section 3.09 |
|
Cancellation |
|
|
25 |
|
|
|
|
Section 3.10 |
|
Computation of Interest |
|
|
25 |
|
|
|
|
Section 3.11 |
|
CUSIP Numbers |
|
|
26 |
|
ii
|
|
|
|
|
|
|
|
|
ARTICLE IV SATISFACTION AND DISCHARGE |
|
|
26 |
|
|
|
|
Section 4.01 |
|
Satisfaction and Discharge of Indenture |
|
|
26 |
|
|
|
|
Section 4.02 |
|
Application of Trust Money |
|
|
27 |
|
|
|
ARTICLE V REMEDIES |
|
|
27 |
|
|
|
|
Section 5.01 |
|
Events of Default |
|
|
27 |
|
|
|
|
Section 5.02 |
|
Acceleration of Maturity; Rescission and Annulment |
|
|
27 |
|
|
|
|
Section 5.03 |
|
Collection of Indebtedness and Suits for Enforcement by Trustee |
|
|
28 |
|
|
|
|
Section 5.04 |
|
Trustee May File Proofs of Claim |
|
|
29 |
|
|
|
|
Section 5.05 |
|
Trustee May Enforce Claims Without Possession of Securities |
|
|
29 |
|
|
|
|
Section 5.06 |
|
Application of Money Collected |
|
|
29 |
|
|
|
|
Section 5.07 |
|
Limitation on Suits |
|
|
30 |
|
|
|
|
Section 5.08 |
|
Unconditional Right of Holders to Receive Principal, Premium and Interest |
|
|
30 |
|
|
|
|
Section 5.09 |
|
Restoration of Rights and Remedies |
|
|
30 |
|
|
|
|
Section 5.10 |
|
Rights and Remedies Cumulative |
|
|
30 |
|
|
|
|
Section 5.11 |
|
Delay or Omission Not Waiver |
|
|
31 |
|
|
|
|
Section 5.12 |
|
Control by Holders |
|
|
31 |
|
|
|
|
Section 5.13 |
|
Waiver of Past Defaults |
|
|
31 |
|
|
|
|
Section 5.14 |
|
Undertaking for Costs |
|
|
31 |
|
|
|
ARTICLE VI THE TRUSTEE |
|
|
32 |
|
|
|
|
Section 6.01 |
|
Certain Duties and Responsibilities |
|
|
32 |
|
|
|
|
Section 6.02 |
|
Notice of Defaults |
|
|
32 |
|
|
|
|
Section 6.03 |
|
Certain Rights of Trustee |
|
|
33 |
|
|
|
|
Section 6.04 |
|
Not Responsible for Recitals or Issuance of Securities |
|
|
34 |
|
|
|
|
Section 6.05 |
|
May Hold Securities |
|
|
34 |
|
|
|
|
Section 6.06 |
|
Money Held in Trust |
|
|
34 |
|
|
|
|
Section 6.07 |
|
Compensation and Reimbursement |
|
|
34 |
|
|
|
|
Section 6.08 |
|
Disqualification; Conflicting Interests |
|
|
35 |
|
|
|
|
Section 6.09 |
|
Corporate Trustee Required; Eligibility |
|
|
35 |
|
|
|
|
Section 6.10 |
|
Resignation and Removal; Appointment of Successor |
|
|
35 |
|
|
|
|
Section 6.11 |
|
Acceptance of Appointment by Successor |
|
|
36 |
|
|
|
|
Section 6.12 |
|
Merger, Conversion, Consolidation or Succession to Business |
|
|
37 |
|
|
|
|
Section 6.13 |
|
Preferential Collection of Claims Against the Company |
|
|
37 |
|
|
|
|
Section 6.14 |
|
Appointment of Authenticating Agent |
|
|
37 |
|
|
|
ARTICLE VII HOLDERS LISTS AND REPORTS BY TRUSTEE AND THE COMPANY |
|
|
38 |
|
|
|
|
Section 7.01 |
|
The Company to Furnish Trustee Names and Addresses of Holders |
|
|
38 |
|
|
|
|
Section 7.02 |
|
Preservation of Information; Communications to Holders |
|
|
38 |
|
|
|
|
Section 7.03 |
|
Reports by Trustee |
|
|
39 |
|
|
|
|
Section 7.04 |
|
Reports by the Company |
|
|
39 |
|
iii
|
|
|
|
|
|
|
|
|
ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE |
|
|
39 |
|
|
|
|
Section 8.01 |
|
The Company May Consolidate, Etc., Only on Certain Terms |
|
|
39 |
|
|
|
|
Section 8.02 |
|
Successor Substituted |
|
|
40 |
|
|
|
ARTICLE IX SUPPLEMENTAL INDENTURES |
|
|
40 |
|
|
|
|
Section 9.01 |
|
Supplemental Indentures without Consent of Holders |
|
|
40 |
|
|
|
|
Section 9.02 |
|
Supplemental Indentures with Consent of Holders |
|
|
41 |
|
|
|
|
Section 9.03 |
|
Execution of Supplemental Indentures |
|
|
41 |
|
|
|
|
Section 9.04 |
|
Effect of Supplemental Indentures |
|
|
42 |
|
|
|
|
Section 9.05 |
|
Conformity with Trust Indenture Act |
|
|
42 |
|
|
|
|
Section 9.06 |
|
Reference in Securities to Supplemental Indentures |
|
|
42 |
|
|
|
ARTICLE X COVENANTS |
|
|
42 |
|
|
|
|
Section 10.01 |
|
Payment of Principal, Premium and Interest |
|
|
42 |
|
|
|
|
Section 10.02 |
|
Maintenance of Office or Agency |
|
|
42 |
|
|
|
|
Section 10.03 |
|
Money for Securities Payments to Be Held in Trust |
|
|
43 |
|
|
|
|
Section 10.04 |
|
Statement by Officers as to Default |
|
|
43 |
|
|
|
|
Section 10.05 |
|
Waiver of Certain Covenants |
|
|
44 |
|
|
|
ARTICLE XI REDEMPTION OF SECURITIES |
|
|
44 |
|
|
|
|
Section 11.01 |
|
Applicability of Article |
|
|
44 |
|
|
|
|
Section 11.02 |
|
Election to Redeem; Notice to Trustee |
|
|
44 |
|
|
|
|
Section 11.03 |
|
Selection by Trustee of Securities to be Redeemed |
|
|
44 |
|
|
|
|
Section 11.04 |
|
Notice of Redemption |
|
|
45 |
|
|
|
|
Section 11.05 |
|
Deposit of Redemption Price |
|
|
45 |
|
|
|
|
Section 11.06 |
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Securities Payable on Redemption Date |
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45 |
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Section 11.07 |
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Securities Redeemed in Part |
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46 |
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ARTICLE XII SINKING FUNDS |
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46 |
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Section 12.01 |
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Applicability of Article |
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46 |
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Section 12.02 |
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Satisfaction of Sinking Fund Payments with Securities |
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46 |
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Section 12.03 |
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Redemption of Securities for Sinking Fund |
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46 |
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ARTICLE XIII DEFEASANCE |
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47 |
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Section 13.01 |
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Applicability of Article |
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47 |
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Section 13.02 |
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Legal Defeasance |
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47 |
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Section 13.03 |
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Covenant Defeasance |
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48 |
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Section 13.04 |
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Application by Trustee of Funds Deposited for Payment of Securities |
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49 |
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Section 13.05 |
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Repayment to the Company |
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49 |
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Section 13.06 |
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Reinstatement |
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49 |
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iv
INDENTURE dated as of ,
20 , between FINANCIAL INSTITUTIONS, INC., a New York corporation (the Company), having its principal office at 220 Liberty Street, Warsaw, New York 14569, and Wilmington Trust, National Association, a national
banking association (the Trustee), an office at 1100 North Market Street, Wilmington, Delaware 19890.
RECITALS OF THE
COMPANY
The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of
its unsecured debentures, notes or other evidences of indebtedness (the Securities), to be issued in one or more series as provided in this Indenture.
All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act that are required to be a part of this Indenture and, to the extent
applicable, shall be governed by such provisions.
WITNESSETH:
NOW, THEREFORE, THIS INDENTURE 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 any series thereof, as follows:
ARTICLE I
DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION
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 in the United States, and, except as otherwise herein expressly provided, the term generally accepted accounting principles with respect to any
computation required or permitted hereunder shall mean such accounting principles as are generally accepted in the United States at the date of such computation;
(4) the words herein, hereof and hereunder and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other subdivision;
(5) the words Article and Section refer to
an Article and Section, respectively, of this Indenture; and
(6) or is not exclusive.
Act, when used with respect to any Holder, has the meaning specified in Section 1.04.
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.
Authenticating Agent means any Person authorized by the Trustee pursuant to Section 6.14 to act on behalf of the Trustee to
authenticate Securities of one or more series.
Authorized Newspaper means a newspaper, in the English language or in an
official language of the country of publication, customarily published on each Business Day, whether or not published on Saturdays, Sundays or holidays, and of general circulation in the place in connection with which the term is used or in the
financial community of such place.
Bankruptcy Law means Title 11, U.S. Code, or any similar federal or state law for the
relief of debtors or the protection of creditors.
Board of Directors means the board of directors of the Company, or the
executive or any other committee of that board duly authorized to act in respect thereof.
Board Resolution means a copy of a
resolution certified by the Corporate Secretary of the Company, the principal financial officer of the Company or any other authorized officer of the Company or a Person duly authorized by any of them, to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
Business Day
means any day other than (i) a Saturday or Sunday, (ii) a day on which banking institutions in New York or the principal Place of Payment are authorized or required by law, regulation or executive order to remain closed or
(iii) a day on which the Corporate Trust Office of the Trustee is closed for business.
Commission means the Securities
and Exchange Commission, as from time to time constituted, created under the Exchange Act or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
Company means the Person named as the Company
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 Company shall mean such successor Person.
Company Request or Company Order means a written request or order signed in the name of the Company by the Chairman of
the Board, the Vice Chairman, the President or a Vice President of the Company, and delivered to the Trustee.
Corporate Trust
Office means the office of the Trustee at which at any particular time its corporate trust business related to this Indenture shall be principally administered, which at the date hereof is 1100 North Market Street, Wilmington, Delaware 19890,
Attention: Financial Institutions Inc. Administrator, or at such other address as to which the Trustee may give notice to the Company from time to time.
Corporation includes corporations, associations, partnerships (general or limited), limited liability companies, joint-stock
companies and business trusts.
Covenant defeasance has the meaning specified in Section 13.03.
Custodian means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
Debt means any debt for money borrowed.
Default means, with respect to a series of Securities, any event which is, or after
the giving of notice or lapse of time or both would become, an Event of Default with respect to Securities of such series.
Defaulted Interest has the meaning specified in Section 3.07.
Defeasance has the meaning specified in Section 13.02.
Definitive Security means a Security other than a Global Security or a temporary Security.
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 3.01, until a successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter shall mean or include each Person which is then a Depositary hereunder, and if at any time there is more than one such Person, shall be a collective reference to such Persons.
Dollar or $ means the coin or currency of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Event of Default has the meaning specified in Section 5.01.
Exchange Act means the Securities Exchange Act of 1934, as amended from time to time, and any statute successor thereto.
Fiscal Year means, with respect to the Company, each 12-month period beginning on January 1 and ending on December 31
provided, however, that, with respect to a series of Securities, the first fiscal year will begin on the date such series of Securities is authenticated and delivered under this Indenture. The Company will notify the Trustee in writing if its fiscal
year changes.
Global Security means a Security in global form that evidences all or part of the Securities of any series and
is registered in the name of the Depositary for such Securities or a nominee thereof.
Holder means a Person in whose name a
Security is registered in the Security Register.
Indenture means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, 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 also shall include the terms of particular series of Securities established as
contemplated by Section 3.01.
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 Security, means the Stated Maturity of an installment of interest on such Security.
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 5.01(3).
Officers Certificate of a Person means a certificate signed by the Chairman of the Board, the Vice Chairman, the President
or a Vice President of the Person, or if such Person is a partnership, of its general partner,
and delivered to the Trustee. The officer or such other Person (as applicable) signing an Officers Certificate given pursuant to Section 10.04 shall be the principal executive,
financial or accounting officer of the Person, or if such Person is a partnership, of its general partner.
Opinion of Counsel
means a written opinion of legal counsel, who may be an employee of or counsel for the Company, which opinion shall comply with the provisions of Section 1.02 and Section 1.03. Such counsel shall be acceptable to the Trustee, whose
acceptance shall not be unreasonably withheld.
Original Issue Discount Security means any Security which provides for an
amount less than the stated principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
Outstanding, when used with respect to Securities, means, as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Securities theretofore previously canceled by the Trustee or
delivered to the Trustee for cancellation pursuant to a Company Order;
(ii) 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 Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities; provided, however, that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor has been made;
(iii) Securities which have been paid pursuant to Section 3.06 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 that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company; and
(iv) Securities, except to the extent provided in Section 13.02
and Section 13.03, with respect to which the Company has effected defeasance or covenant defeasance as provided in Article XIII;
provided, however,
that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, (A) the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon acceleration of the Maturity thereof on such date pursuant to
Section 5.02, (B) the principal amount of a Security denominated in one or more currencies or currency units other than U.S. dollars shall be the U.S. dollar equivalent of such currencies or currency units, determined in the manner
provided as contemplated by Section 3.01 on the date of original issuance of such Security, of the principal amount (or, in the case of an Original Issue Discount Security, the U.S. dollar equivalent (as so determined) on the date of original
issuance of such Security, of the amount determined as provided in Clause (A) above) of such Security, and (C) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company 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 or waiver, only Securities which
the Trustee knows to be so owned shall be so disregarded. Securities so owned as described in Clause (C) above which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee
the pledgees right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.
Paying Agent means any Person authorized by the Company to pay the principal of or any premium or interest on any Securities on
behalf of the Company.
Periodic Offering means an offering of Securities of a series from time to time, the specific terms of
which Securities, including, without limitation, the rate or rates of interest or formula for determining the rate or
rates of interest thereon, if any, the Stated Maturity or Stated Maturities thereof, the original issue date or dates thereof, the redemption provisions, if any, with respect thereto, and any
other terms specified as contemplated by Section 3.01 with respect thereto, are to be determined by the Company upon the issuance of such Securities.
Person means any individual, corporation, partnership, joint venture, trust, unincorporated organization or government or any
agency or political subdivision thereof.
Place of Payment, when used with respect to the Securities of any series, means,
unless otherwise specifically provided for with respect to such series as contemplated by Section 3.01, the office or agency of the Company (which may be an office of the Paying Agent) in the contiguous United States and such other place or
places where, subject to the provisions of Section 10.02, the principal of and any premium and interest on the Securities of that series are payable as specified as contemplated by Section 3.01.
Predecessor Security of any particular Security means every previous Security evidencing all or a portion of the same Debt as that
evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.06 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 by the Company 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 the date specified
for that purpose as contemplated by Section 3.01.
Responsible Officer when used with respect to the Trustee, means any
officer in the corporate trust department of the Trustee with direct responsibility for the administration of this Indenture, and also means, with respect to a particular corporate trust matter relating to this Indenture, any other officer of the
Trustee to whom such matter is referred because of such persons knowledge of and familiarity with the particular subject.
Securities has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated
and delivered under this Indenture.
Security Register and Security Registrar have the respective meanings
specified in Section 3.05.
Special Record Date for the payment of any Defaulted Interest means a date fixed by the
Company pursuant to Section 3.07.
Stated Maturity, when used with respect to the principal of 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, with respect to any Person, any entity of which more than 50% of the total voting power of the equity interests
entitled, without regard to the occurrence of any contingency, to vote in the election of directors, managers or trustees thereof; or any partnership of which more than 50% of the partners equity interests, considering all partners
equity interests as a single class, is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or combination thereof.
Trust Indenture Act means the Trust Indenture Act of 1939, as 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 each Trustee with respect to Securities of that series.
U.S. Government Obligations means securities which are (i) direct obligations of
the United States for the payment of which its full faith and credit is pledged, or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States, the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United States, each of which are not callable or redeemable at the option of the issuer thereof.
Vice President, when used with respect to the Company, means any vice president of the Company, or when used with respect to the
Trustee, means any vice president of the Trustee.
Section 1.02 |
Compliance Certificates and Opinions |
Upon any application or request by the Company to
the Trustee to take or refrain from taking any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officers Certificate stating that, in the opinion of the signers, all conditions precedent and covenants,
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 have been complied with. Each such certificate or
opinion shall be given in the form of an Officers Certificate, if to be given by officers of the Company, or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture Act and any other
requirements set forth in this Indenture.
Every Officers Certificate or Opinion of Counsel (except for certificates provided for in
Section 10.04) 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 1.03 |
Form of Documents Delivered to Trustee |
In any case where several matters are required
to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but
one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company, stating that the information with respect
to such factual matters is in the possession of the Company, unless such counsel knows that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Section 1.04 |
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 or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed (either physically or by means of a facsimile
or an electronic transmission, provided that such electronic transmission is transmitted through the facilities of a Depositary) by such Holders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are delivered (either physically or by means of a facsimile or an electronic transmission, provided that such electronic transmission is transmitted through the facilities of a
Depositary) to the Trustee and, where it is hereby expressly required, to the Company. 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 315 of the Trust Indenture Act) conclusive
in favor of the Trustee and the Company, if made in the manner provided in this Section.
Security Holders, may make, give or take, by a
proxy or proxies, duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders, and a Depositary that is a Holder of a Global
Security may provide its proxy or proxies to the beneficial owners of interests in any such Global Security.
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 of any such instrument or writing or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.
The ownership, principal amount and serial numbers of Securities held by any Person, and the date of commencement of such Persons
holding the same, shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other action 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 Company in reliance thereon, whether or not notation of such action is made upon such Security.
Without limiting the foregoing, a Holder entitled hereunder to give or 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 different part of such principal amount.
The Company may set any day as the record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to
give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given or taken by Holders of Securities of such series, but the Company shall have no obligation to do
so. With regard to any record date set pursuant to this paragraph, the Holders of Outstanding Securities of the relevant series on such record date (or their duly appointed agents), and only such Persons, shall be entitled to give or take the
relevant action, whether or not such Holders remain Holders after such record date.
Section 1.05 |
Notices, Etc., to Trustee and the Company |
Any request, demand, authorization,
direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made in writing and actually received by
the Trustee at its office at 1100 North Market Street, Wilmington, Delaware 19890, Attention: Financial Institutions Inc. Administrator or at any other address previously furnished in writing by the Trustee, or
(2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to the Company, addressed to it at 220 Liberty Street, Warsaw, New York 14569, to the attention of the Corporate Secretary, or at any other address previously furnished in writing to the Trustee
by the Company.
Section 1.06 |
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 (if international mail, by air mail), 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. Any notice mailed to a Holder in the manner herein prescribed shall be conclusively deemed to
have been received by such Holder, whether or not such Holder actually receives such notice.
Notwithstanding any other provision of this
Indenture or any Security, where this Indenture or any Security provides for notice of any event (including any notice of redemption) to a Holder of 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) pursuant to the standing instructions from the Depositary (or its designee), including by electronic mail in accordance with accepted practices at the Depositary.
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 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 Company shall constitute a sufficient notification for every purpose hereunder.
Section 1.07 |
Conflict with Trust Indenture Act |
If any provision hereof limits, qualifies or
conflicts with a provision of the Trust Indenture Act that is required under such Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or excluded, as the case may be.
Section 1.08 |
Effect of Headings and Table of Contents |
The Article and Section headings herein and
the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 1.09 |
Successors and Assigns |
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 1.10 |
Separability Clause |
In case any provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.11 |
Benefits of Indenture |
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their successors hereunder and Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 1.12 |
Governing Law |
This Indenture and the Securities shall be governed by and construed in
accordance with the law of the State of New York.
Section 1.13 |
Legal Holidays |
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day, then (notwithstanding any other provision of this Indenture or of the Securities (other than a provision of the Securities of any series 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 on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity, provided that no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
Section 1.14 |
Language of Notices, Etc. |
Any request, demand, authorization, direction, notice,
consent, waiver or Act required or permitted under this Indenture shall be in the English language, except that any published notice may be in an official language of the country of publication.
Section 1.15 |
Interest Limitation |
It is the intention of the Company to conform strictly to all
applicable usury laws and any subsequent revisions, repeals or judicial interpretations thereof. Accordingly, if the transactions contemplated hereby would be usurious under any applicable law then, in that event, notwithstanding anything to the
contrary in the Securities or this Indenture, it is agreed as follows: (i) the aggregate of all consideration which constitutes interest under applicable law with respect to a Security shall under no circumstances exceed the maximum amount
allowed by applicable law, and any excess shall be credited to the principal amount of such Security (or, if the principal amount of such Security shall have been paid in full, refunded to the Company), to the extent permitted by applicable law; and
(ii) in the event that the maturity of any Security is accelerated or in the event of any redemption of such Security, then such consideration that constitutes interest under applicable law may never include more than the maximum amount allowed
by applicable law, and any excess shall be credited to the principal amount of such Security (or, if the principal amount of such Security shall be paid in full, refunded to the Company), to the extent permitted by applicable law. All calculations
(as determined by the Company and communicated to the Trustee and the Paying Agent in a Company Order) made to compute the rate of interest with respect to a Security for the purpose of determining whether such rate exceeds the maximum amount
allowed by applicable law shall be made, to the extent permitted by such applicable law, by allocating and spreading during the period of the full stated term of such Security all interest any time contracted for, taken, reserved, charged or
received by such Holder or by the
Trustee on behalf of any such Holder in connection therewith so that the amount or rate of interest charged for any and all periods of time during the term of the Security does not exceed the
maximum amount or rate of interest allowed to be charged by law during the relevant period of time. Notwithstanding any of the foregoing, if at any time applicable laws shall be changed so as to permit a higher rate or amount of interest to be
charged than that permitted prior to such change, then unless prohibited by law, references in this Indenture or any Security to applicable law when used in the context of determining the maximum interest or rate of interest that can be
charged shall be deemed to refer to such applicable law as so amended to allow the greater amount or rate of interest. Neither the Trustee nor the Paying Agent shall have any duty or responsibility to verify any calculations or determinations of the
Company hereunder.
The right to accelerate maturity of any Security does not include the right to accelerate any interest which has not
otherwise accrued to the date of such acceleration, provided, however, that the foregoing shall not prohibit the continuing accrual after acceleration of interest in accordance with the terms of the Indenture and such Security.
Section 1.16 |
No Personal Liability of Officers, Directors, Employees or Shareholders |
Obligations of
the Company under this Indenture and the Securities hereunder are payable only out of cash flow and assets of the Company. Each Holder of a Security by its acceptance thereof, will be deemed to have agreed in this Indenture that no director,
officer, employee, or shareholder, as such, of the Company, the Trustee, or any Affiliate of any of the foregoing entities shall have any personal liability in respect of the obligations of the Company under this Indenture or such Securities by
reason of his, her or its status. The agreements set forth in this Section are part of the consideration for the issuance of the Securities.
Section 1.17 |
Applicability of Depositary |
Notwithstanding any other provision of this Indenture, so
long as a series of Securities is a Global Security, the parties hereto will be bound at all times by the applicable procedures of the Depositary with respect to such series.
Section 1.18 |
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 1.19 |
U.S.A. Patriot Act |
The parties hereto acknowledge that in accordance with
Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or
legal entity that establishes a relationship or opens an account with the Trustee.
Section 1.20 |
Counterpart Originals |
This Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. The exchange of copies of this Indenture and of signature pages by facsimile, PDF or other electronic
transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile, PDF or other
electronic means shall be deemed to be their original signatures for all purposes.
ARTICLE II
SECURITY FORMS
Section 2.01 |
Forms Generally |
The Securities of each series 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 applicable laws or the rules of any securities
exchange or automated quotation system on which the Securities of such series may be listed or traded or of any Depositary therefor or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced by their
execution of the Securities. 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 an authorized officer or other authorized Person
on behalf of the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 3.03 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 2.02 |
Form of Face of Security |
[Insert any legend required by the United States Internal
Revenue Code and the regulations thereunder.]
[If a Global Security, as required by Section 2.04 of this Indenture, insertTHIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR SECURITIES
REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION
OF TRANSFER OF, OR IN EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.]
[If applicable, insertUNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL IN AS MUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
FINANCIAL INSTITUTIONS, INC. [TITLE OF SECURITY]
FINANCIAL INSTITUTIONS, INC. a New York corporation (herein called the Company, 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 United States Dollars [state other currency] on , 20 , [if the Security is to bear
interest prior to Maturity, insert, and to pay interest thereon from , 20 , 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,
and at the rate of % per annum on any overdue principal and premium and on any overdue installment of interest]. [If applicable, insert (The amount of interest payable for any period shall be computed on the basis of twelve
30-day months and a 360-day year. The amount of interest payable for any partial period shall be computed on the basis of a 360-day year of twelve 30-day months and the days elapsed in any partial month. In the event that any date on which interest
is payable on this Security is not a Business Day, then a payment of the interest payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of any such delay) with the
same force and effect as if made on the date the payment was originally payable. A Business Day means any day other than (i) a Saturday or Sunday, (ii) a day on which banking institutions in
or any applicable Place of Payment are authorized or required by law, regulation or executive order to remain closed or
(iii) a day on which the Corporate Trust Office of the Trustee is closed for business.)]. 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, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for shall 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 Company, notice of which
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 or automated
quotation system on which the Securities of this series may be listed or traded, and upon such notice as may be required by such exchange or automated quotation system, all as more fully provided in such 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 of this Security shall bear interest at the rate of % per annum, which shall accrue
from the date of such default in payment to the date payment of such principal has been made or duly provided for. Interest on any overdue principal shall be payable on demand. Any such interest on any overdue principal that is not so paid on demand
shall bear interest at the rate of % per annum, which shall accrue from the date of such demand for payment to the date payment of such interest has been made or duly provided for, and such interest shall also be payable on
demand.)]
[If a Global Security, insert (Payment of the principal of [(and premium, if any)] and [if applicable, insertany
such] interest on this Security will be made by transfer of immediately available funds to a bank account designated by the Holder 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 [state other currency].]
[If a Definitive Security, insert (Payment of the principal of [(and premium, if
any)] and [if applicable, insertany such] interest on this Security will be made at the office or agency of the Company maintained for that purpose in
, [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] [state other currency] [or subject to any laws or regulations applicable thereto and to the right of the Company (as provided in the Indenture) to rescind the designation of any such Paying Agent, at the [main] offices of
in and
in , or at such other offices or agencies as the Company may designate, by [United States Dollar]
[state other currency] check drawn on, or transfer to a [United States Dollar] account maintained by the payee with, a bank in
(so long as the applicable Paying Agent has received proper transfer instructions in writing at least 15 days prior to the
payment date)] [if applicable, insert (; provided, however, that payment of interest may be made at the option of the Company through the Paying Agent by [United States Dollar] [state other currency] check mailed to the addresses of the Persons
entitled thereto as such addresses shall appear in the Security Register] [or by transfer to a [United States Dollar] [state other currency] account maintained by the payee with a bank in
(so long as the applicable Paying Agent has received proper transfer instructions in writing by the Record Date prior to the
applicable Interest Payment Date)].]
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.
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.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
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Dated: |
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FINANCIAL INSTITUTIONS, INC. |
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By: |
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Name: |
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Title: |
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
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Wilmington Trust, National Association, as Trustee |
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By: |
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Authorized Signatory |
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Dated: |
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Section 2.03 |
Form of Reverse of Security |
This Security is one of a duly authorized issue of
securities of the Company (the Securities), issued and to be issued in one or more series under an Indenture dated as of
(the Indenture), between the Company and Wilmington Trust, National Association, as Trustee (the
Trustee, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, obligations,
duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. As provided in the Indenture, the Securities may be issued in
one or more series, which different series may be issued in various aggregate principal amounts, may mature at different times, may bear interest, if any, at different rates, may be subject to different redemption provisions, if any, may be subject
to different sinking, purchase or analogous funds, if any, may be subject to different covenants and Events of Default and may otherwise vary as in the Indenture provided or permitted. This Security is one of the series designated on the face hereof
[if applicable, insert, limited in aggregate principal amount to U.S.$ ].
[If
applicable, insertThe Securities of this series are subject to redemption upon not less than 30 nor more than 60 days notice by mail, [if applicable, insert, or while Securities are in global form delivered through the applicable
procedures of the Depositary][if applicable, insert(1) on in any year commencing with the year 20 and ending with the year 20 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, inserton or after , 20 ], as a whole or
in part, at the election of the Company, at the following Redemption Prices (expressed as percentages of the principal amount): If redeemed [if applicable, inserton or before
, 20 , %, and if redeemed] during the 12-month period beginning
of the years indicated,
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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, but excluding, 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, insertThe Securities of this series are subject to redemption upon not less than 30 nor more than 60 days notice
by mail, (1) on in any year commencing with the year 20 and ending with the year
20 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, inserton or after , 20 , as a whole or in part, at the election of the Company, 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,
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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, but excluding, 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, insertThe sinking fund for this series provides for the redemption in each year beginning with the year
20 and ending with the year 20 of [if applicable,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 Company otherwise than through [if applicable, mandatory] sinking fund payments may be credited against subsequent [if applicable,mandatory]
sinking fund payments otherwise required to be made [if applicable,in the inverse order in which they become due].]
[If the
Security is subject to redemption in part of any kind, insertIn 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, insertThe Securities of this series are not redeemable prior to
Stated Maturity.]
[If the Security is not an Original Issue Discount Security, insertIf an Event of Default with respect to
Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insertIf an Event of Default with respect to Securities of this series shall
occur and be continuing, an amount of principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. Such amount shall be equal toinsert formula for determining the
amount. Upon payment (1) of the amount of principal so declared due and payable, and (2) of interest on any overdue principal and overdue interest, all of the Companys obligations in respect of the payment of the principal of 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 Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of
not less than the Holders of a majority in aggregate principal amount of the Outstanding Securities of all series to be affected (voting as one class). The Indenture also contains provisions permitting the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all affected series (voting as one class), on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture. The Indenture
permits, with certain exceptions as therein provided, the Holders of a majority in principal amount of Securities of any series then Outstanding to waive past defaults under the Indenture with respect to such series 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 as Trustee and offered the Trustee reasonable indemnity 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, without the consent of the Holder, alter or
impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and [any premium and] interest on this Security at the times, place(s) and rate, and in the coin or currency, herein prescribed, except for
Section 1.15 of the Indenture (which limits interest to the maximum amount permissible by law), the provisions of which are incorporated herein by reference.
[If a Global Security, insertThis Global Security or portion hereof may not be exchanged for Definitive Securities of this series except
in the limited circumstances provided in the Indenture.
The holders of beneficial interests in this Global Security will not be entitled
to receive physical delivery of Definitive Securities except as described in the Indenture and will not be considered the Holders thereof for any purpose under the Indenture.]
[If a Definitive Security, insertAs provided in the Indenture and subject to certain limitations therein set forth, the transfer of this
Security is registerable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in [if applicable, insert any place where the principal of and any premium and interest on
this Security are payable] [if applicable, insert ] [, or, subject to any laws or regulations applicable thereto and to the
right of the Company (limited as provided in the Indenture) to rescind the designation of any such transfer agent, at the [main] offices of
in and
in or at such other offices or agencies as the Company may designate]], duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new 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 minimum denominations of U.S. $ [state other currency] and any integral multiple of
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 Company 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 Company, the Trustee and any agent of the Company 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 is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
Obligations of the Company under the Indenture and the Securities
thereunder, including this Security, are payable only out of cash flow and assets of the Company. Each Holder of a Security by its acceptance hereof, will be deemed to have agreed in the Indenture that no director, officer, employee, or shareholder,
as such, of the Company, the Trustee, or any Affiliate of any of the foregoing entities shall have any personal liability in respect of the obligations of the Company under the Indenture or such Securities by reason of his, her or its status.
The Indenture contains provisions that relieve the Company from the obligation to comply with certain restrictive covenants in the Indenture
and for satisfaction and discharge at any time of the entire indebtedness upon compliance by the Company with certain conditions set forth in the Indenture.
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.
[If a Definitive Security, insert as a separate page
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please Print or Typewrite Name and Address of Assignee) the within instrument of FINANCIAL INSTITUTIONS, and does hereby
irrevocably constitute and appoint Attorney to transfer said instrument on the books of the within-named Company, with full
power of substitution in the premises.
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Please Insert Social Security or |
Other Identifying Number of Assignee: |
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Dated: |
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(Signature) |
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Signature Guarantee: |
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(Participant in a Recognized Signature
Guaranty Medallion Program)
NOTICE: The
signature to this assignment must correspond with the name as written upon the face of the within instrument in every particular, without alteration or enlargement or any change whatever.]
Section 2.04 |
Global Securities |
Every Global Security authenticated and delivered hereunder shall
bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF
AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL
SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
If Securities of a series are issuable in whole or in part in
the form of one or more Global Securities, as contemplated by Section 3.01, then, notwithstanding Clause (9) of Section 3.01 and the provisions of Section 3.02, any Global Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may provide that it shall represent the aggregate amount of Outstanding Securities from time to time endorsed thereon and that the aggregate amount of Outstanding Securities represented
thereby may from time to time be reduced or increased, as the case may be, to reflect exchanges. Any endorsement of a Global Security to reflect the amount, or any reduction or increase in the amount, of Outstanding Securities represented thereby
shall be made in such manner and upon instructions given by such Person or Persons as shall be specified therein or in a Company Order. Subject to the provisions of Section 3.03, Section 3.04 and Section 3.05, the Trustee shall
deliver and redeliver any Global Security in the manner and upon instructions given by the Person or Persons specified therein or in the applicable Company Order. Any instructions by the Company with respect to endorsement or delivery or redelivery
of a Global Security shall be in a Company Order (which need not comply with Section 1.02 and need not be accompanied by an Opinion of Counsel).
The provisions of the last sentence of Section 3.03 shall apply to any Security represented
by a Global Security if such Security was never issued and sold by the Company and the Company delivers to the Trustee the Global Security together with a Company Order (which need not comply with Section 1.02 and need not be accompanied by an
Opinion of Counsel) with regard to the reduction or increase, as the case may be, in the principal amount of Securities represented thereby, together with the written statement contemplated by the last sentence of Section 3.03.
Section 2.05 |
Form of Trustees Certificate and Authorization |
The Trustees 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.
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Wilmington Trust, National Association, as Trustee |
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By: |
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Authorized Signatory |
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Date: |
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ARTICLE III
THE SECURITIES
Section 3.01 |
Amount Unlimited; Issuable in Series |
The aggregate principal amount of Securities which
may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution (and, subject to Section 3.03, to the extent established pursuant to rather than set forth in a Board Resolution, in an Officers Certificate or Company Order setting forth, or determining
the manner of, such establishment) or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series,
(1) the form and title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any other
series);
(2) the 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 3.04, Section 3.05, Section 3.06,
Section 9.06 or Section 11.07 and except for any Securities which, pursuant to Section 3.03, are deemed never to have been authenticated and delivered hereunder);
(3) the date or dates on which the Securities will be issued and on which the principal of, and premium, if any, on the Securities of the
series is payable or the method of determination thereof;
(4) the rate or rates (which may be fixed or variable) at which the Securities
of the series shall bear interest, if any, or the method of determination thereof, the date or dates from which such interest shall accrue, or the method of determination thereof, the Interest Payment Dates on which any such interest shall be
payable and the Regular Record Date for any interest payable on any Interest Payment Date;
(5) the place or places where, subject to the provisions of Section 10.02, the principal of
and any premium and interest on Securities of the series shall be payable, Securities of the series may be surrendered for registration of transfer, Securities of the series may be surrendered for exchange and notices, and demands to or upon the
Company in respect of the Securities of the series and this Indenture may be served;
(6) the period or periods, if any, within which, the
price or prices at which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company or otherwise, if the Company is to have that option;
(7) the obligation, if any, and the option, if any, of the Company to redeem, purchase or repay Securities of the series pursuant to any
sinking fund or analogous provisions or upon the happening of a specified event or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the
series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
(8) if other than minimum denominations
of $1,000 and any integral multiple in excess thereof, the denominations in which Securities of the series shall be issuable;
(9) whether
payment of principal of and premium, if any, and interest, if any, on the Securities of the series shall be without deduction for taxes, assessments or governmental charges paid by Holders of the series;
(10) the currency, currencies or currency units in which payment of the principal of and any premium and interest on any Securities of the
series shall be denominated, payable, redeemable or purchasable if other than the currency of the United States of America and the manner of determining the equivalent thereof in the currency of the United States of America for purposes of the
definition of Outstanding in Section 1.01;
(11) if the amount of payments of principal of or any premium or interest on
any Securities of the series may be determined with reference to an index, the manner in which such amounts shall be determined;
(12) if
the principal of or any premium or interest on any Securities of the series is to be payable, at the election of the Company or a Holder thereof, in one or more currencies or currency units other than that or those in which the Securities are stated
to be payable, the currency, currencies or currency units in which payment of the principal of and any premium and interest on Securities of such series as to which such election is made shall be payable, and the periods within which and the terms
and conditions upon which such election is to be made;
(13) the right, if any, of the Company to defer payments of interest by extending
the interest payment periods and specify the duration of such extension, the Interest Payment Dates on which such interest shall be payable and whether and under what circumstances additional interest on amounts deferred shall be payable;
(14) if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 5.02 or provable in bankruptcy pursuant to Section 5.04 or the method of determination thereof;
(15) if and as applicable, that the Securities of the series shall be issuable in whole or in part in the form of one or more Global
Securities (and whether in temporary or permanent global form) and, in such case, the Depositary or Depositaries for such Global Security or Global Securities and any circumstances other than those set forth in Section 3.05 in which any such
Global Security may be transferred to, and registered and exchanged for Securities registered in the name of, a Person other than the Depositary for such Global Security or a nominee thereof and in which any such transfer may be registered;
(16) any deletions from, modifications of or additions to the Events of Default set forth in Section 5.01 or the covenants of the Company
set forth in Article X pertaining to the Securities of the series;
(17) if and the terms and conditions upon which any Securities of the series may be converted
into or exchanged for securities, which may include, without limitation, capital stock, of any class or series of the Company or any other issuer;
(18) if the amount of payments of principal of or any premium or interest on any Securities of the series may be determined with reference to
an index, including, but not limited to an index based on a currency or currencies other than that in which the Securities of that series are payable, or any other type of index, the manner in which such amounts shall be determined;
(19) if other than as provided in Section 13.02 and Section 13.03, the terms and conditions upon which and the manner in which such
series of Securities may be defeased or discharged;
(20) if other than the Trustee, the identity of any other trustee, the Security
Registrar, any Paying Agent and any other agent with respect to the Securities of such series;
(21) any restrictions or other provisions
with respect to the transfer or exchange of the Securities; and
(22) any other terms of the Securities of the series (which terms shall
not be inconsistent with the provisions of this Indenture, except as permitted by Section 9.01(3)).
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 or Officers Certificate referred to above or in any such indenture supplemental hereto.
Any such Board Resolution or Officers Certificate referred to above with respect to Securities of any series filed with the Trustee on
or before the initial issuance of the Securities of such series shall be incorporated herein by reference with respect to Securities of such series and shall thereafter be deemed to be a part of the Indenture for all purposes relating to Securities
of such series as fully as if such Board Resolution or Officers Certificate were set forth herein in full.
All Securities of any
one series need not be issued at the same time and, unless otherwise provided, a series may be reopened, without the consent of the Holders, for increases in the aggregate principal amount of such series of Securities and issuances of additional
Securities of such series or for the establishment of additional terms with respect to the Securities of such series.
If any of the terms
of the series are established by action taken by or pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by an authorized Officer or other authorized person of the Company and delivered to the Trustee at
or prior to the delivery of the Officers Certificate setting forth, or providing the manner for determining, the terms of the series.
With respect to Securities of a series subject to a Periodic Offering, such Board Resolution or Officers Certificate may provide general
terms for Securities of such series and provide either that the specific terms of particular Securities of such series shall be specified in a Company Order or an indenture supplemental thereto, or that such terms shall be determined by the Company,
or one or more of the Companys agents designated in an Officers Certificate, in accordance with a Company Order.
Section 3.02 |
Denominations |
The Securities of each series shall be issuable only in registered form
without coupons in such minimum denominations as shall be specified as contemplated by Section 3.01. In the absence of any such specified minimum denomination with respect to the Securities of any series, the Securities of such series shall be
issuable in minimum denominations of $1,000 and any integral multiple in excess thereof.
Section 3.03 |
Execution, Authentication, Delivery and Dating |
The Securities shall be executed on
behalf of the Company by the Chairman of the Board, Vice Chairman, Chief Executive Officer, Chief Financial Officer, President or any Vice President of the Company and need not be attested. 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 Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities;
provided, however, that in the case of Securities offered in a Periodic Offering, the Trustee shall authenticate and deliver such Securities from time to time in accordance with such other procedures acceptable to the Trustee as may be specified by
or pursuant to a Company Order delivered to the Trustee prior to the time of the first authentication of Securities of such series. If the form or terms of the Securities of the series have been established in or pursuant to one or more Board
Resolutions as permitted by Section 2.01 and Section 3.01, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, in
addition to any Officers Certificate and Opinion of Counsel required to be furnished to the Trustee pursuant to Section 1.02, and (subject to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel stating,
(1) if the form and terms (or the manner of determining the terms) of such Securities have been established by or pursuant to Board Resolution
as permitted by Section 2.01, that such form or forms have been established in conformity with the provisions of this Indenture;
(2)
if the terms of such Securities have been, or in the case of Securities of a series offered in a Periodic Offering, will be, established by or pursuant to a Board Resolution as permitted by Section 3.01, that such terms have been, or in the
case of Securities of a series offered in a Periodic Offering, will be, established in conformity with the provisions of this Indenture, subject, in the case of Securities of a series offered in a Periodic Offering, to any conditions specified in
such Opinion of Counsel;
(3) that such Securities, when authenticated and delivered by the Trustee upon receipt of a Company Order and
issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors rights and to general equity principles and entitled to the benefits of this Indenture, equally and
ratably with all other Securities, if any, of such series Outstanding;
(4) such other matters as the Trustee may request; and
(5) if the authentication and delivery relates to a new series of Securities created by an indenture supplemental hereto, also stating that
all conditions precedent to the execution of the supplemental indenture with respect to that series of Securities have been complied with, the Company has the power to execute and deliver any such supplemental indenture and has taken all necessary
action for those purposes and any such supplemental indenture has been executed and delivered and constitutes the legal, valid and binding obligation of the Company enforceable in accordance with its terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, fraudulent conveyance, moratorium or other laws and legal principles affecting creditors rights generally from time to time in effect and to general equitable principles, whether applied in an
action at law or in equity).
If such form or forms 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 Trustees 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.
With respect to Securities of a series not to be originally issued at one time, the Trustee may
rely upon the Opinion of Counsel and the other documents delivered pursuant to Section 2.01 and Section 3.01 and this Section, as applicable, in connection with the first authentication of Securities of such series and any subsequent
request by the Company to the Trustee to authenticate Securities of such series upon original issuance shall constitute a representation and warranty by the Company that as of the date of such request, the statements made in the Officers
Certificate shall be true and correct as if made on such date.
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 of an authorized signatory, and such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 3.09 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 3.04 |
Temporary Securities |
Pending the preparation of Definitive Securities of any series,
the Company may execute, and upon receipt of the documents required by Section 3.03, together with a Company Order, the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor of the Definitive Securities of like series 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 Company 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 Company maintained pursuant to Section 10.02 for the purpose of exchanges of Securities of such series, without
charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series the Company shall execute and the Trustee shall upon receipt of a Company Order authenticate and deliver in exchange therefor one or more
Definitive Securities of the same series, of any authorized denominations and of a like aggregate principal amount and tenor. 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.
Section 3.05 |
Registration, Registration of Transfer and Exchange |
The Company shall cause to be kept
at the Corporate Trust Office of the Trustee a register (the register maintained in such office or in any other office or agency of the Company in a Place of Payment being herein sometimes referred to as the Security Register) in which,
subject to such reasonable rules as it may prescribe, the Company shall provide for the registration of Securities and of transfers of Securities. The Company shall, prior to the issuance of any Securities hereunder, appoint the Trustee as the
initial Security Registrar for the purpose of registering Securities and transfers of Securities as herein provided. The Company may at any time replace such Security Registrar, change such office or agency or act as its own Security
Registrar. The Company will give prompt written notice to the Trustee of any change of the Security Registrar or of the location of such office or agency. At all reasonable times the Security Register shall be available for inspection by the
Trustee.
Upon surrender for registration of transfer of any Security of any series at the office or agency
of the Company maintained pursuant to Section 10.02 for such purpose, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same
series, of any authorized denominations and of a like aggregate principal amount and tenor.
At the option of the Holder, Securities of
any series (except a Global Security) may be exchanged for other Securities of the same series, of any authorized denominations and of a like aggregate principal amount and tenor, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee upon receipt of a Company Order shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee or
the Security Registrar, if other than the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed, by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may
require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 3.04 or 11.07 not
involving any transfer.
Neither the Trustee nor the Company shall be required (1) to issue, register the transfer of or exchange
Securities of any series (or of any series and specified tenor, as the case may be) during a period beginning at the opening of business 15 days before the day of delivery of a notice of redemption of Securities of that series selected for
redemption under Section 11.03 and ending at the close of business on the day of such delivery, or (2) 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.
Notwithstanding any other provision in this Indenture and except as otherwise specified as
contemplated by Section 3.01, no Global Security may be transferred to, or registered or exchanged for Securities registered in the name of, any Person other than the Depositary for such Global Security or any nominee thereof, and no such
transfer may be registered, except as provided in this paragraph. Every Security authenticated and delivered upon registration or transfer of, or in exchange for or in lieu of, a Global Security shall be a Global Security, except as provided in this
paragraph. If (1) (A) the Depositary for a Global Security notifies the Company that it is unwilling or unable to continue as Depositary for such Global Security or ceases to be a clearing agency registered under the Exchange Act, and
(B) a successor Depositary is not appointed by the Company within 90 days, (2) an Event of Default has occurred and is continuing with respect to the Securities of such series and the Security Registrar has received a written request from
the Depositary to issue certificated securities in lieu of all or a portion of the Global Securities of such series (in which case the Company shall deliver certificated securities within 30 days of such request) or (3) the Company determines
in its sole discretion that Securities of a series issued in global form shall no longer be represented by a Global Security, then such Global Security may be exchanged by such Depositary for Definitive Securities of the same series, of any
authorized denomination and of a like aggregate principal amount and tenor, registered in the names of, and the transfer of such Global Security or portion thereof may be registered to, such Persons as such Depositary shall direct.
Section 3.06 |
Mutilated, Destroyed, Lost and Stolen Securities |
If any mutilated Security is
surrendered to the Trustee, together with such security or indemnity bond as may be required by the Company or the Trustee to protect each of them and any agent of either of them harmless, the Company shall execute and upon its request 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 Company and the Trustee (1) evidence to their
satisfaction of the destruction, loss or theft of any Security and (2) such security or indemnity bond as may be required by them to protect each of them and any agent of either of them harmless, then, in the absence of notice to the Company or
the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon its request the Trustee shall authenticate and 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. If, after the delivery of such new Security, a bona fide purchaser of the original Security in lieu of which such new Security was issued presents
for payment or registration such original Security, the Trustee shall be entitled to recover such new Security from the party to whom it was delivered or any party taking therefrom, except a bona fide purchaser, and shall be entitled to recover upon
the security or indemnity bond provided therefor to the extent of any loss, damage, cost or expense incurred by the Company and the Trustee in connection therewith.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith. Every new Security of any
series issued pursuant to this Section in exchange for any mutilated Security or in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the mutilated,
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 3.07 |
Payment of Interest; Interest Rights Preserved |
Except as otherwise provided as
contemplated by Section 3.01 with respect to any series of Securities, interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest.
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) after any applicable grace period shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in Clause (1) or (2) below:
The Company 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 Company 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 Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Company 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 Company shall promptly notify the Trustee of such Special Record Date and, in the name and at the expense of the Company, the Trustee shall
cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be sent to each Holder of Securities of such series at his address as it appears in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been 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).
The Company 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 or automated quotation system on which such Securities may be listed or traded, and upon such notice as may be required by such exchange, if, after notice given by
the Company to the Trustee of the proposed payment pursuant to this Clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 3.05, 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.
For each series of Securities, the Company shall, prior to 10:30 a.m. (Eastern time) on each payment date for principal and premium, if any,
and interest, if any, deposit with the Trustee money in immediately available funds sufficient to make cash payments due on the applicable payment date.
Section 3.08 |
Persons Deemed Owners |
Except as otherwise provided as contemplated by Section 3.01
with respect to any series of Securities, prior to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Security is registered in the
Security Register as the owner of such Security for the purpose of receiving payment of principal of and any premium and (subject to Section 3.05 and Section 3.07) any interest on such Security and for all other purposes whatsoever,
whether or not such Security is overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held on its behalf by a Depositary shall have any rights under this Indenture with
respect to such Global Security, and such Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the owner of such Global Security for all purposes whatsoever. None of the Company, the Trustee nor any
agent of the Company or the Trustee will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
Section 3.09 |
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 canceled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any
Securities previously authenticated hereunder which the Company has not issued and sold, in each case accompanied by a Company Order, and all Securities so delivered shall be promptly canceled by the Trustee. No Securities shall be authenticated in
lieu of or in exchange for any Securities canceled as provided in this Section, except as expressly permitted by this Indenture. All canceled Securities held by the Trustee shall be disposed of in accordance with its customary procedures, and the
Trustee shall thereafter, from time to time upon written request, deliver to the Company a certificate with respect to such disposition.
Section 3.10 |
Computation of Interest |
Except as otherwise specified as contemplated by
Section 3.01 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months and interest on the Securities of each series for any partial period shall be computed
on the basis of a 360-day year of twelve 30-day months and the number of days elapsed in any partial month.
Section 3.11 |
CUSIP Numbers |
The Company in issuing the Securities may use CUSIP numbers
(in addition to the other identification numbers printed on the Securities), and, if so, the Trustee shall use CUSIP numbers in notices of redemption as a convenience to Holders; provided, however, that any such notice may state that no
representation is made as to the correctness of such CUSIP 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 CUSIP numbers. The Company will promptly notify the Trustee in writing of any change in the CUSIP numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.01 |
Satisfaction and Discharge of Indenture |
This Indenture shall upon Company Request cease
to be of further effect with respect to Securities of any series (except as to any surviving rights of registration of transfer or exchange of such Securities herein expressly provided for), and the Trustee, at the expense of the Company, shall
execute such instruments reasonably requested by the Company acknowledging satisfaction and discharge of this Indenture with respect to such Securities, when
(1) either
(A)
all such Securities theretofore authenticated and delivered (other than (i) such Securities which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.06, and (ii) such Securities for whose
payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 10.03) have been delivered to the Trustee for
cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for cancellation
(i) have become due and payable,
(ii) will become due and payable at their Stated Maturity within one year, or
(iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of the Company,
and the Company in the case of (i), (ii) or
(iii) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for this purpose an amount of money in the currency or currency units in which such Securities are payable sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal and any premium and interest to the date of such deposit (in the case of Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable hereunder by
the Company with respect to such Securities; and
(3) the Company has delivered to the Trustee an Officers Certificate and an
Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture with respect to such Securities have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with respect to Securities of any series, (i) the obligations of the
Company to the Trustee under Section 6.07, the obligations of the Trustee to any Authenticating Agent under Section 6.14 and the right of the Trustee to resign under Section 6.10 shall survive, and
(ii) if money shall have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of this Section, the obligations of the Company and/or the Trustee under
Section 4.02, Section 6.06, Section 7.01 and Section 10.02 and the last paragraph of Section 10.03 shall survive.
Section 4.02 |
Application of Trust Money |
Subject to the provisions of the last paragraph of
Section 10.03, all money deposited with the Trustee pursuant to Section 4.01 shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal and any premium and interest for whose payment such money has been deposited with the Trustee.
ARTICLE V
REMEDIES
Section 5.01 |
Events of Default |
Event of Default, wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any
Security of that series when it becomes due and payable, and continuance of such default for a period of 30 days; or
(2) default in the
payment of the principal of (or premium, if any, on) any Security of that series at its Maturity; or
(3) default in the performance, or
breach, of any term, covenant or warranty of the Company in this Indenture (other than a term, covenant or warranty a default in whose performance or whose breach is elsewhere in this Section specifically dealt with or 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 90 days after there has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by 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; or
(4) the Company pursuant to or within the meaning of any Bankruptcy Law (A) commences
a voluntary case, (B) consents to the entry of any order for relief against it in an involuntary case, (C) consents to the appointment of a Custodian of it or for all or substantially all of its property, or (D) makes a general
assignment for the benefit of its creditors; or
(5) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law
that (A) is for relief against the Company in an involuntary case, (B) appoints a Custodian of the Company or for all or substantially all of its property, or (C) orders the liquidation of the Company; and the order or decree remains
unstayed and in effect for 90 days; or
(6) any other Event of Default provided as contemplated by Section 3.01 with respect to
Securities of that series.
Section 5.02 |
Acceleration of Maturity; Rescission and Annulment |
If an Event of Default with respect
to Securities of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee or Holders of not less than 25% in principal amount of the Outstanding Securities of that series may declare the principal amount of
(or, if any of the Securities of that series
are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified in the terms thereof) all of the Securities of that series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable. If an Event of Default under
Section 5.01(4) or Section 5.01(5) occurs and is continuing then the principal amount of all of the Securities shall be due and payable immediately.
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, Holders of a majority in principal amount of the Outstanding Securities of that series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of that series,
(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 any 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 and reasonable expenses, disbursements and advances
of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that series, other than the
non-payment of the principal of Securities of that series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent Default or impair any right consequent thereon.
When any Default has occurred and is continuing under this Indenture, the Company shall, within five (5) Business Days after
becoming aware of such Default, deliver to the Trustee an Officers Certificate specifying such Default, its status and what actions the Company is taking or proposed to take with respect thereto.
Section 5.03 |
Collection of Indebtedness and Suits for Enforcement by Trustee |
The Company covenants
that if
(1) default is made in the payment of any 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 Company will pay to the Trustee, for the benefit of Holders of such Securities, the whole amount then due and payable on such
Securities for principal 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 compensation and reasonable expenses, disbursements and advances of the Trustee, its agents and
counsel.
If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same against the Company, or any other obligor upon such Securities and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the Company, or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee, provided the Trustee has knowledge of
such Event of Default, may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 5.04 |
Trustee May File Proofs of Claim |
In case of any judicial proceeding relative to the
Company, or any other obligor upon the Securities, their property or their 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 Holders and the Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized 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 Holders, to pay to the Trustee any amount due it for the compensation and reasonable expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 6.07.
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 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 5.05 |
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 compensation and reasonable expenses, disbursements and advances of the Trustee, its agents and
counsel, be for the ratable benefit of Holders of the Securities in respect of which such judgment has been recovered.
Section 5.06 |
Application of Money Collected |
Any money or property collected or to be applied 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 interest, upon presentation of
the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the
payment of all amounts due the Trustee under Section 6.07;
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 Company.
Section 5.07 |
Limitation on Suits |
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture or a Security, 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) 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 and, if requested, provided to the Trustee reasonable security or indemnity 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 and, if requested, provision of security or indemnity has
failed to institute any such proceeding; and
(5) no written direction inconsistent with such written request has been given to the
Trustee during such 60-day period by 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.
Section 5.08 |
Unconditional Right of Holders to Receive Principal, Premium and Interest |
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Section 3.05 and Section 3.07) interest on such Security on the respective Stated Maturity 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 5.09 |
Restoration of Rights and Remedies |
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then in every such case, subject to any
determination in such proceeding, the Company, the Trustee and Holders shall be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Trustee and Holders shall continue as though no
such proceeding had been instituted.
Section 5.10 |
Rights and Remedies Cumulative |
Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 3.06, no right or remedy herein conferred upon or reserved to the Trustee or to 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 5.11 |
Delay or Omission Not Waiver |
No delay or omission of the Trustee or of any Holder of
any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or
by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 5.12 |
Control by Holders |
Subject to the provisions of Section 6.03, Holders of a
majority in aggregate principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, with respect to the Securities of such series; provided, however, 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) the Trustee shall have the right to decline to follow any such direction if the Trustee in good
faith shall determine that the proceeding so directed would involve the Trustee in personal liability or would otherwise be contrary to applicable law.
Section 5.13 |
Waiver of Past Defaults |
Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series may on behalf of Holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except
(1) a continuing default in the payment of the principal of or any premium or interest on any Security of such series, or
(2) a default in respect of a covenant or provision hereof which under Article IX cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture, but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 5.14 |
Undertaking for Costs |
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, however, 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, in any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities of any series to which the suit relates, or in any
suit instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any) or interest on any Security on or after the respective Stated Maturity expressed by such Security (or, in the case of redemption or repayment,
on or after the Redemption Date).
ARTICLE VI
THE TRUSTEE
Section 6.01 |
Certain Duties and Responsibilities |
(a) Except during the continuance of an Event of
Default with respect to any series of Securities,
(1) the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture with respect to the Securities of such series, and no implied covenants or obligations shall read into this Indenture against the Trustee (it being agreed that the permissive right of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty); and
(2) in the absence of bad faith on its part, the Trustee may, with
respect to Securities of such series, 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 conforming on their face 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 only whether or not they
conform on their face to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts, statements, opinions or conclusions stated therein).
(b) In case an Event of Default with respect to any series of Securities has occurred and is continuing, the Trustee shall exercise with
respect to the Securities of such series such 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 such
persons own affairs.
(c) No provisions 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
(1) this Subsection shall not be construed
to limit the effect of Subsection (a) of this Section;
(2) 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;
(3) 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 or a majority in principal amount of the Outstanding Securities of any series relating to the
time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such series; and
(4) 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 adequate indemnity against such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of
or affording protection to the Trustee shall be subject to the provisions of this Section.
Section 6.02 |
Notice of Defaults |
If a Default occurs and is continuing with respect to the Securities
of any series, the Trustee shall, within 90 days after it occurs and is actually known to an officer of the Trustee responsible for this Indenture, transmit, in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act,
notice of all uncured or unwaived Defaults known to it; provided, however, that, except in the case of a Default in payment on the Securities of any series, the Trustee shall be protected in withholding the notice if and so long as a committee of
Responsible Officers of the Trustee determines in good faith that withholding such notice is in the interests of Holders of Securities of such series.
For all purposes of this Indenture (including, without limitation, Section 6.01) and the
securities, the Trustee shall not be deemed to have notice or be charged with knowledge of any Default, except a Default under Section 5.01(1) or Section 5.01(2) herein (provided that, the Trustee is also the Paying Agent), unless the
Trustee shall have received from the Company or from any Holder written notice thereof at its Corporate Trust Office, and such notice references the Securities and this Indenture. In the absence of any such notice, the Trustee may conclusively
assume that no such Default exists.
Section 6.03 |
Certain Rights of Trustee |
Subject to the provisions of Section 6.01:
(1) the Trustee may rely on 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, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a Company Request
or Company Order (or in the case of a Periodic Offering, as agreed in procedures set forth in a Company Order pursuant to Section 3.03) and any resolution of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
(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, rely upon an Officers Certificate;
(4) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee
shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or
indemnity satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may, without obligation to do so, make such further
inquiry or investigation into such facts or matters as it may see fit; and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or
by agent or attorney;
(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 may request that the Company deliver an Officers Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this Indenture, which Officers Certificate may be signed by any Person authorized to sign an Officers Certificate, including any Person specified as so authorized in
any such certificate previously delivered and not superseded;
(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; and
(10) In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind
whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
Section 6.04 |
Not Responsible for Recitals or Issuance of Securities |
The recitals contained herein
and in the Securities, except the Trustees certificates of authentication, shall be taken as the statements of the Company, and the Trustee or any Authenticating Agent assumes no responsibility for their correctness. Neither the Trustee nor
any Authenticating Agent makes any 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 Company of
Securities or the proceeds thereof.
Section 6.05 |
May Hold Securities |
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Section 6.08 and Section 6.13, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 6.06 |
Money Held in Trust |
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder.
Section 6.07 |
Compensation and Reimbursement |
The Company agrees:
(1) to pay to the Trustee from time to time such compensation for all services rendered by it hereunder as shall be mutually agreed upon by
the Company and the Trustee in writing (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(2) 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 its gross negligence or
willful misconduct; and
(3) to indemnify the Trustee, its officers, directors, employees and agents for, and to hold each of them
harmless against, any loss, liability or expense incurred without gross negligence or willful misconduct on any of their parts, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the
costs and expenses of enforcing this Indenture against the Company (including this Section 6.07) and defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder.
The obligations of the Company under this Section to compensate the Trustee and to pay or reimburse the Trustee for expenses, disbursements
and advances shall constitute additional indebtedness hereunder.
Without limiting any rights available to the Trustee under applicable
law, when the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 5.01(4) or Section 5.01(5), the expenses (including the reasonable charges and expenses of its counsel) and the
compensation for such services are intended to constitute expenses of administration under any applicable Bankruptcy Law.
To secure the Companys payment obligations in this Section 6.07, the Trustee is hereby
granted a lien prior to the Securities against all money or property held or collected by the Trustee, in its capacity as Trustee.
The
provisions of this Section shall survive the satisfaction and discharge of this Indenture and the defeasance of the Securities and the resignation or removal of the Trustee.
Section 6.08 |
Disqualification; Conflicting Interests |
If the Trustee 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.
Section 6.09 |
Corporate Trustee Required; Eligibility |
There shall at all times be one or more
Trustees hereunder with respect to the Securities of each series, at least one of which shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus required by the Trust Indenture Act.
If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of a supervising or examining authority, then for the purposes of this Section, 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 shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the
manner and with the effect hereinafter specified in this Article.
Section 6.10 |
Resignation and Removal; Appointment of Successor |
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 6.11.
The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company. If
the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may, at the expense of the Company,
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 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 Company. If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of such notice of removal, the
removed Trustee may, at the expense of the Company, petition 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 6.08 after written request therefor by the Company 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 6.09 and shall fail to resign after written request therefor by the Company 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
Company, acting pursuant to the authority of a Board Resolution, may remove the Trustee with respect to all Securities, or (B) subject to Section 5.14, 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 Company, 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 6.11. 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 Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment
in accordance with the applicable requirements of Section 6.11, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with
respect to the Securities of any series shall have been so appointed by the Company or Holders and accepted appointment in the manner required by Section 6.11, 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 Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series to all Holders of Securities of such series in the manner provided in Section 1.06. 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 6.11 |
Acceptance of Appointment by Successor |
(1) In case of the appointment hereunder of a
successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges and all amounts due to it under Section 6.07, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts
of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
(2) In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which
(A) 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, (B) 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 (C) 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 as co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution
and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, but, on request of the Company, or any successor Trustee, such
retiring Trustee shall, upon payment of its charges and all amounts due to it under Section 6.07, 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.
(3) Upon request of any such successor Trustee, the Company shall execute any and all instruments
for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (1) or (2) of this Section, as the case may be.
(4) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
Section 6.12 |
Merger, Conversion, Consolidation or Succession to Business |
Any corporation into which
the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all
the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
Section 6.13 |
Preferential Collection of Claims Against the Company |
If and when the Trustee shall be
or become a creditor of the Company, 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 Company or any such other obligor.
Section 6.14 |
Appointment of Authenticating Agent |
The Trustee (upon notice to the Company) may
appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon original issue (in accordance with procedures
acceptable to the Trustee) and upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 3.06, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustees certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company.
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 such Authenticating Agent, shall continue to be an Authenticating Agent.
An Authenticating Agent may resign at any time by
giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be
acceptable to the Company.
Except with respect to an Authenticating Agent appointed at the request of the Company, the Company agrees to
pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant to this Section, the
Securities of such series may have endorsed thereon, in addition to the Trustees 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.
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Wilmington Trust, National Association, as Trustee |
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Date: |
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By: |
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As Authenticating Agent |
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By: |
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Authorized Signatory |
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ARTICLE VII
HOLDERS LISTS AND REPORTS BY TRUSTEE AND THE COMPANY
Section 7.01 |
The Company to Furnish Trustee Names and Addresses of Holders |
The Company will furnish
or cause to be furnished to the Trustee
(1) not later than five (5) Business Days before each Interest Payment Date, a list for each
series of Securities, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Securities of such series as of the preceding Regular Record Date, and
(2) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time such list is furnished;
provided, however, that if and so long as the
Trustee shall be the Security Registrar for Securities of a series, no such list need be furnished with respect to such series of Securities.
Section 7.02 |
Preservation of Information; Communications to Holders |
The Trustee shall comply with
the obligations imposed upon it pursuant to Section 312 of the Trust Indenture Act.
The rights of the 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 Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of any disclosure of information as to the names and addresses of Holders made pursuant to the Trust Indenture Act.
Section 7.03 |
Reports by Trustee |
As promptly as practicable after each
beginning with the
following the later of the date of this Indenture and the date of initial issuance of Securities hereunder, the Trustee shall
send to each Holder a brief report dated as of that complies with Trust Indenture Act Section 313(a). The Trustee also
shall comply with Trust Indenture Act Section 313(b). Prior to delivery to the Holders, the Trustee shall deliver to the Company a copy of any report it delivers to Holders pursuant to this Section 7.03; provided, however, that no recourse
may be taken against the Trustee for its failure to deliver a copy of such report to the Company prior to its delivery of the report to the Holders.
A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company will notify the Trustee in writing when any Securities are listed on any stock exchange.
Section 7.04 |
Reports by the Company |
The Company shall file with the Commission (and send a copy to
the Trustee), and transmit to Holders, such information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to the Trust Indenture Act;
provided that with respect to any such information, documents and reports filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval (or EDGAR) system, the Company shall notify the Trustee in the manner prescribed
herein of each such filing. The Trustee is hereby authorized and directed to access the EDGAR system for purposes of retrieving the financial information so filed. The Trustee shall have no duty to search for or obtain any electronic or other
filings that the Company makes with the Commission, regardless of whether such filings are periodic, supplemental or otherwise. Delivery of reports, information and documents to the Trustee pursuant to this Section 7.04 shall be solely for
purposes of compliance with this Section 7.04 and, if applicable, with Section 314(a) of the Trust Indenture Act, but shall not relieve the Company of the requirement to deliver the Officers Certificates referred to below.
The Trustees receipt of such reports, information and documents is for informational purposes only and the Trustees receipt of such shall not constitute actual or constructive knowledge or notice to it of the content thereof or any
matter determinable from the contents thereof, including the Companys compliance with any of its covenants hereunder, as to which the Trustee is entitled to rely upon Officers Certificates. The Trustee will have no responsibility
whatsoever to monitor whether such filing or posting has occurred or the timeliness of such filing or posting.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.01 |
The Company May Consolidate, Etc., Only on Certain Terms |
The Company shall not
consolidate with or merge into any other Person or convey, transfer or lease its properties and assets substantially as an entirety to, any Person, unless:
(1) the Person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer, or
which leases, the properties and assets of the Company substantially as an entirety shall be a corporation, partnership 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 other covenant of this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving
effect to such transaction and treating any indebtedness which becomes an obligation of the Company or a Subsidiary as a result of such transaction as having been incurred by the Company 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 Company would become subject to a mortgage, pledge, lien, security interest or other encumbrance which would not be permitted by this Indenture, the Company or such successor Person, as the case may be, shall take such
steps as shall be necessary effectively to secure the Securities equally and ratably with (or prior to) all indebtedness secured thereby; and
(4) the Company 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.
Section 8.02 |
Successor Substituted |
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any conveyance, transfer or lease of the properties and assets of the Company substantially as an entirety in accordance with Section 8.01, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been
named as the Company herein and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities and coupons and may liquidate and dissolve.
ARTICLE IX
SUPPLEMENTAL
INDENTURES
Section 9.01 |
Supplemental Indentures without Consent of Holders |
Without the consent of any Holders
of Securities, the Company and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, for any of the following purposes:
(1) to evidence the succession of another Person to the Company under this Indenture and the Securities and the assumption by such successor
Person of the obligations of the Company hereunder;
(2) to add covenants and Events of Default for the benefit of the Holders of all or
any series of such Securities or to surrender any right or power conferred by this Indenture upon the Company or to make any change that does not adversely affect the legal rights hereunder of any Holder in any material respect;
(3) to add to, change or eliminate any of the provisions of this Indenture, provided that any such addition, change or elimination shall
become effective only after there are no such Securities of any series entitled to the benefit of such provision outstanding;
(4) to
establish the forms or terms of the Securities of any series issued hereunder;
(5) to cure any ambiguity or correct any defect or
inconsistency in this Indenture;
(6) to evidence the acceptance of appointment by a successor Trustee with respect to one or more series
of Securities or otherwise;
(7) to qualify this Indenture under the Trust Indenture Act;
(8) to provide for uncertificated securities in addition to certificated securities;
(9) to supplement any provisions of this Indenture necessary to permit or facilitate the defeasance and discharge of any series of Securities,
provided that such action does not adversely affect the interests of the Holders of Securities of such series or any other series; and
(10) to comply with the rules or regulations of any securities exchange or automated quotation system on which any of the Securities may be
listed or traded.
Section 9.02 |
Supplemental Indentures with Consent of Holders |
With the consent of the Holders of not
less than a majority in aggregate principal amount of all Outstanding Securities affected by such supplemental indenture (voting as one class)(including any consents obtained in connection with a tender offer of the Securities), the Company 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 modifying in any manner the rights of Holders of
Securities of such series under this Indenture; provided that the Company and the Trustee may not, 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, if any, on, any Security, or reduce the
principal amount thereof or premium, if any, on or the rate of interest thereon or alter the method of computation of interest;
(2)
reduce the percentage in principal amount of Securities required for any such supplemental indenture or for any waiver provided for in this Indenture;
(3) change the Companys obligation to maintain an office or agency for payment of Securities and the other matters specified herein;
(4) impair the right to institute suit for the enforcement of any payment of principal of, premium, if any, or interest on, any Security;
or
(5) modify any of the provisions of this Indenture relating to the execution of supplemental indentures with the consent of Holders of
Securities which are discussed in this Section or modify any provisions relating to the waiver by Holders of Securities of past defaults and covenants, except to increase any required percentage or to provide that other provisions of this Indenture
cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby.
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 9.03 |
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 6.01) 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. The Trustee shall enter into any supplemental indenture which does not adversely
affect the Trustees own rights, duties, liabilities or immunities under this Indenture or otherwise. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which adversely affects the Trustees own
rights, duties, liabilities or immunities under this Indenture or otherwise.
Section 9.04 |
Effect of Supplemental Indentures |
Upon the execution of any supplemental indenture
under this Article, 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 9.05 |
Conformity with Trust Indenture Act |
Every supplemental indenture executed pursuant to
this Article shall conform to the requirements of the Trust Indenture Act as then in effect.
Section 9.06 |
Reference in Securities to Supplemental Indentures |
Securities of any series
authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, bear a notation as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series
so modified as to conform, in the opinion of the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series. Failure to
make a notation or issue a new Security shall not affect the validity and effect of any amendment, supplement or waiver.
ARTICLE X
COVENANTS
Section 10.01 |
Payment of Principal, Premium (if any) and Interest |
The Company 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. An installment of
principal or interest shall be considered paid on the date due if on such date the Trustee or the Paying Agent holds as of 10:30 a.m., New York City time, money sufficient to pay all principal and interest then due and the Trustee or the Paying
Agent, as the case may be, is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture.
Section 10.02 |
Maintenance of Office or Agency |
The Company will maintain in each Place of Payment for
any series of Securities an office or agency where Securities of 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 Company in respect of the Securities of that series and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency 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 or shall fail
to furnish the Trustee with the address thereof, such presentations and surrenders may be made at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations and surrenders.
The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or
agency in each Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency;
provided however, that no service of legal process on the Company may be made at any office of the Trustee.
Except as otherwise specified
with respect to a series of Securities as contemplated by Section 3.01, the Company hereby initially designates as the Place of Payment for each series of Securities to be the Corporate Trust Office of the Trustee, and initially appoints the
Trustee as Paying Agent at its office at 1100 North Market Street, Wilmington, Delaware 19890, as the Companys office or agency for each such purpose in such city.
Section 10.03 |
Money for Securities Payments to Be Held in Trust |
If the Company or any of its
Subsidiaries shall at any time act as 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 Company shall have one or more Paying Agents for any series of
Securities, it will, on or prior to each due date of the principal of 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 Company will promptly notify the Trustee in writing of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will (1) hold all sums held by it for the payment of the principal of (and premium, if any) or interest, if
any, on Securities of that series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided; (2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of any payment of principal (and premium, if any) or interest, if any, on the Securities of that series; and (3) during the continuance of any such default, 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. If an Event of Default occurs and is continuing under Section 5.01(4) or
Section 5.01(5), the Trustee shall automatically be the Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent 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 state which escheat laws control and the Trustee or any Paying Agent shall be discharged from such
trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the state which escheat laws control for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such payment, may at the expense of the Company cause to be published once, in an
Authorized Newspaper, 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 paid to the
state whose escheat laws control.
Section 10.04 |
Statement by Officers as to Default |
The Company will deliver to the Trustee, within 120
days after the end of each Fiscal Year of the Company ending after the date hereof, an Officers Certificate, stating whether or not to the best knowledge of the signer or signers thereof the Company is in default in the performance and
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 Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
Section 10.05 |
Waiver of Certain Covenants |
The Company may omit in any particular instance to comply
with any term, provision or condition set forth in Section 10.02 through Section 10.03 with respect to the Securities of any series if before the time for such compliance Holders of at least a majority in aggregate principal amount of the
Outstanding Securities of all affected series (voting as one class) shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to
or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition
shall remain in full force and effect.
A waiver which changes or eliminates any term, provision or condition 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 term, provision or condition, shall be deemed not to affect
the rights under this Indenture of the Holders of Securities of any other series.
ARTICLE XI
REDEMPTION OF SECURITIES
Section 11.01 |
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 3.01 for Securities of any series) in accordance with this Article.
Section 11.02 |
Election to Redeem; Notice to Trustee |
The election of the Company to redeem any
Securities shall be evidenced by a Board Resolution. In case of any redemption at the election of the Company of less than all the Securities of any series, the Company shall, not less than 35 nor more than 60 days prior to the Redemption Date fixed
by the Company (unless a shorter notice shall be satisfactory to the Trustee and provided, notice may be given more than 60 days prior to a redemption date if the notice is issued in connection with Article IV or Article XIII), notify the Trustee of
such Redemption Date, of the principal amount of Securities of such series to be redeemed. In the case of any redemption of Securities (1) prior to the expiration of any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, or (2) pursuant to an election of the Company which is subject to a condition specified in the terms of such Securities, the Company shall furnish the Trustee with an Officers Certificate evidencing compliance
with such restriction or condition.
Section 11.03 |
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 35 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities of such series not previously called for redemption, on a pro rata basis, by lot or by any other method which the Trustee deems fair and appropriate and which complies with any securities exchange or other applicable
requirements of any Depositary for redemption of portions (equal to the minimum authorized denomination for Securities of that series or any integral multiple thereof) of the principal amount of Securities of such series of a denomination larger
than the minimum authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption.
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 11.04 |
Notice of Redemption |
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, at his address appearing in the Security Register, or otherwise in accordance with the applicable procedures of the
Depositary; provided, notice may be given more than 60 days prior to a redemption date if the notice is issued in connection with Article IV or Article XIII.
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 and of a specified tenor are to be redeemed, the
identification (and, in the case of partial redemption of any Securities, the principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and that interest
thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be surrendered for payment of
the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed shall be given by the Company or, at the Companys request made in the form of an
Officers Certificate (made to the Trustee at least 5 days (or such shorter period as shall be satisfactory to the Trustee) prior to the mailing of such notice), by the Trustee in the name and at the expense of the Company. Any such request
will set forth the information to be stated in such notice, as provided by this Section 11.04.
Section 11.05 |
Deposit of Redemption Price |
On or prior to 10:30 a.m. (Eastern time) on any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.03) an amount of money sufficient to pay the Redemption Price
of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities which are to be redeemed on that date.
Section 11.06 |
Securities Payable on Redemption Date |
Notice of redemption having been given as
aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued interest to
the Redemption Date; provided, however, that, unless otherwise specified as contemplated by Section 3.01, installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 3.07.
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 11.07 |
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 Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series 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 XII
SINKING
FUNDS
Section 12.01 |
Applicability of Article |
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 3.01 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a
mandatory sinking fund payment, and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an optional sinking fund payment. If provided for by the terms of
Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 12.02. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
Section 12.02 |
Satisfaction of Sinking Fund Payments with Securities |
The Company (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 Company 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 the Securities of such series required to be
made pursuant to the terms of such Securities as provided for by the terms of such series; provided that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 12.03 |
Redemption of Securities for Sinking Fund |
Not less than 45 days prior to each sinking
fund payment date for any series of Securities (unless a shorter period shall be satisfactory to the Trustee), the Company will deliver to the Trustee an Officers Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities of that series pursuant to
Section 12.02 and stating the basis for such credit and that such Securities have not been previously so credited, and will also deliver to the Trustee any Securities to be so delivered. Not less than 30 days before each such sinking fund
payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 11.03 and cause notice of the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 11.04. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Section 11.05 and Section 11.07.
ARTICLE XIII
DEFEASANCE
Section 13.01 |
Applicability of Article |
The provisions of this Article shall be applicable to each
series of Securities except as otherwise specified as contemplated by Section 3.01 for Securities of such series.
Section 13.02 |
Legal Defeasance |
In addition to discharge of the Indenture pursuant to
Section 4.01, the Company shall be deemed to have paid and discharged the entire indebtedness on all the Securities of such a series on the 91st day after the date of the deposit referred to in Clause (1) below, and the provisions of this
Indenture with respect to the Securities of such series shall no longer be in effect (except as to (i) rights of registration of transfer and exchange of Securities of such series and the Companys right of optional redemption, if any,
(ii) substitution of mutilated, destroyed, lost or stolen Securities, (iii) rights of Holders of Securities to receive payments of principal thereof and interest thereon, upon the original stated due dates therefor or on the specified
redemption dates therefor (but not upon acceleration), and remaining rights of the holders to receive mandatory sinking fund payments, if any, (iv) the rights, obligations, duties and immunities of the Trustee hereunder, and the Companys
obligations in connection therewith (including, but not limited to, Section 6.07), (v) the rights, if any, to convert or exchange the Securities of such series, (vi) the rights of Holders of Securities of such series as beneficiaries
hereof with respect to the property so deposited with the Trustee payable to all or any of them, and (vii) the obligations of the Company under Section 10.02), and the Trustee, at the expense of the Company, shall, upon a Company Request,
execute proper instruments acknowledging the same, if the conditions set forth below are satisfied (hereinafter, defeasance):
(1) The Company has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust, for the purposes of making the
following payments, specifically pledged as security for, and dedicated solely to, the benefit of Holders of the Securities of such series (A) cash in an amount, or (B) in the case of any series of Securities the payments on which may only
be made in legal coin or currency of the United States, U.S. Government Obligations, maturing as to principal and interest at such times and in such amounts as will insure the availability of cash, or (C) a combination thereof, certified to be
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 (i) the principal and interest and premium, if any, on all Securities of
such series on each date that such principal, interest or premium, if any, is due and payable or on any Redemption Date established pursuant to Clause (3) below, and (ii) any mandatory sinking fund payments on the dates on which such
payments are due and payable in accordance with the terms of the Indenture and the Securities of such series;
(2) The Company has
delivered to the Trustee an Opinion of Counsel based on the fact that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (B) since the date hereof, there has been a change in the
applicable federal income tax law, in either case to the effect that, and such opinion shall confirm that, Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to federal income tax on the same amount and in the same manner and at the same times, as would have been the case if such deposit, defeasance and discharge had not occurred;
(3) If the Securities are to be redeemed prior to Stated Maturity (other than from mandatory sinking fund payments or analogous payments),
notice of such redemption shall have been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee shall have been made;
(4) No Event of Default or event which with notice or lapse of time or both would become an Event of Default shall have occurred and be
continuing on the date of such deposit;
(5) Such 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);
(6) Such defeasance shall not result in a breach or violation of, or constitute a default under,
any other agreement or instrument to which the Company is a party or by which it is bound;
(7) Such defeasance shall not result in the
trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act of 1940, as amended, unless such trust shall be registered under such Act or exempt from registration thereunder; and
(8) The Company has delivered to the Trustee an Officers Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this provision have been complied with.
For this purpose, such
defeasance means that the Company and any other obligor upon the Securities of such series shall be deemed to have paid and discharged the entire debt represented by the Securities of such series, which shall thereafter be deemed to be
Outstanding only for the purposes of Section 13.04 and the rights and obligations referred to in Clauses (i) through (vii), inclusive, of the first paragraph of this Section, and to have satisfied all its other obligations
under the Securities of such series and this Indenture insofar as the Securities of such series are concerned.
Section 13.03 |
Covenant Defeasance |
The Company and any other obligor shall be released on the 91st day
after the date of the deposit referred to in Clause (1) below from its obligations under Section 7.04 and Section 8.01 with respect to the Securities of any series on and after the date the conditions set forth below are satisfied
(hereinafter, covenant defeasance), and the Securities of such series shall thereafter be deemed to be not Outstanding for the purposes of any request, demand, authorization, direction, notice, waiver, consent or declaration
or other action or Act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed Outstanding for all other purposes hereunder. For this purpose, such covenant defeasance means that, with
respect to the Securities of such series, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such Section, whether directly or indirectly by reason of any reference
elsewhere herein to such Section or by reason of any reference in such Section to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 5.01, but,
except as specified above, the remainder of this Indenture and the Securities of such series shall be unaffected thereby. The following shall be the conditions to application of this Section 13.03:
(1) The Company has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely to, the benefit of Holders of the Securities of such series, (A) cash in an amount, or (B) in the case of any series of Securities the payments on which may
only be made in legal coin or currency of the United States, U.S. Government Obligations, maturing as to principal and interest at such times and in such amounts as will insure the availability of cash, or (C) a combination thereof, sufficient,
in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay (i) the principal and interest and premium, if any, on all Securities of such series
on each date that such principal, interest or premium, if any, is due and payable or on any Redemption Date established pursuant to Clause (2) below, and (ii) any mandatory sinking fund payments on the day on which such payments are due
and payable in accordance with the terms of the Indenture and the Securities of such series;
(2) If the Securities are to be redeemed
prior to Stated Maturity (other than from mandatory sinking fund payments or analogous payments), notice of such redemption shall have been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee shall have been made;
(3) No Event of Default or event which with notice or lapse of time or both would become an Event of Default shall have occurred and be
continuing on the date of such deposit;
(4) The Company has delivered to the Trustee an Opinion of Counsel which shall confirm that
Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a
result of such deposit and covenant defeasance and will be subject to federal income tax on the same amount and in the same manner and at the same time as would have been the case if such deposit
and covenant defeasance had not occurred;
(5) Such 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);
(6) Such covenant
defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Company is a party or by which it is bound;
(7) Such covenant defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of
the Investment Company Act of 1940, as amended, unless such trust shall be registered under such Act or exempt from registration thereunder; and
(8) The Company has delivered to the Trustee an Officers Certificate and Opinion of Counsel stating that all conditions precedent
provided for relating to the covenant defeasance contemplated by this provision have been complied with.
Section 13.04 |
Application by Trustee of Funds Deposited for Payment of Securities |
Subject to the
provisions of the last paragraph of Section 10.03, all moneys or U.S. Government Obligations deposited with the Trustee pursuant to Section 13.02 or Section 13.03 (and all funds earned on such moneys or U.S. Government Obligations)
shall be held in trust and applied by it to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent), to Holders of the particular Securities of such series for the payment or redemption of
which such moneys have been deposited with the Trustee, of all sums due and to become due thereon for principal and interest; but such money need not be segregated from other funds except to the extent required by law. Subject to Section 13.02
and Section 13.03, the Trustee shall promptly pay to the Company upon Company Order any moneys held by it at any time, which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification
delivered to the Trustee, are in excess of the amounts required to effect the defeasance with respect to the Outstanding Securities in question.
Section 13.05 |
Repayment to the Company |
Subject to applicable abandoned property law, the Trustee and
any Paying Agent promptly shall pay or return to the Company upon Company Request any money and U.S. Government Obligations held by them at any time that are not required for the payment of the principal of and any interest on the Securities of any
series for which money or U.S. Government Obligations have been deposited pursuant to Section 13.02 or Section 13.03, which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written
certification delivered to the Trustee, are in excess of the amounts required to effect the defeasance with respect to the Outstanding Securities in question.
The provisions of the last paragraph of Section 10.03 shall apply to any money held by the Trustee or any Paying Agent under this Article
that remains unclaimed for two years after the Maturity of any series of Securities for which money or U.S. Government Obligations have been deposited pursuant to Section 13.02 or Section 13.03.
Section 13.06 |
Reinstatement |
If the Trustee or the Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with this Article 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 obligations
of the Company under this Indenture and the Securities of the applicable series shall be revived and reinstated as though no deposit had occurred pursuant to this Indenture until such time as the Trustee or the Paying Agent is permitted to apply all
such money or U.S. Government Obligations in accordance with this Article; provided, however, that if the Company has made any payment of principal of or interest on any Securities of such series because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of Holders of such Securities to receive such payment from the money or U.S. Government Obligations held by the Trustee or the Paying Agent
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed in
multiple counterparts, each of which so executed shall be deemed to be an original, but all of which shall together constitute but one and the same instrument, all as of the day and year first above written.
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FINANCIAL INSTITUTIONS, INC. |
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By: |
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Name: |
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Title: |
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WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee |
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By: |
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Name: |
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Title: |
Exhibit 4.6
FINANCIAL INSTITUTIONS, INC.
Issuer
and
WILMINGTON TRUST, NATIONAL ASSOCIATION
Trustee
INDENTURE
Dated as of ,
20
SUBORDINATED DEBT SECURITIES
FINANCIAL INSTITUTIONS, INC.
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO
SECTIONS 310 THROUGH 318, INCLUSIVE, OF THE
TRUST INDENTURE ACT OF 1939:
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Trust Indenture Act Section |
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Indenture Section |
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§301(a)(1) |
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609 |
(a)(2) |
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609 |
(a)(3) |
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Not Applicable |
(a)(4) |
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Not Applicable |
(b) |
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608; 610 |
§311(a) |
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613 |
(b) |
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613 |
§312(a) |
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701; 702 |
(b) |
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702 |
(c) |
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702 |
§313(a) |
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703 |
(b) |
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703 |
(c) |
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703 |
(d) |
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703 |
§314(a) |
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704 |
(a)(4) |
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1004 |
(b) |
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Not Applicable |
(c)(1) |
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102 |
(c)(2) |
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102 |
(c)(3) |
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Not Applicable |
(d) |
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Not Applicable |
(e) |
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102 |
§315(a) |
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601; 603 |
(b) |
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601 |
(c) |
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601 |
(d) |
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601 |
(e) |
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514 |
§316(a) |
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101 |
(a)(1)(A) |
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501; 512 |
(a)(1)(B) |
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513 |
(a)(2) |
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Not Applicable |
(b) |
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508 |
(c) |
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104 |
§517(a)(1) |
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503 |
(a)(2) |
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504 |
(b) |
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1003 |
§318(a) |
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107 |
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.
i
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
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1 |
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Section 1.01 |
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Definitions |
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1 |
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Section 1.02 |
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Compliance Certificates and Opinions |
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6 |
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Section 1.03 |
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Form of Documents Delivered to Trustee |
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7 |
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Section 1.04 |
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Acts of Holders; Record Dates |
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7 |
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Section 1.05 |
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Notices, Etc., to Trustee and the Company |
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8 |
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Section 1.06 |
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Notice to Holders; Waiver |
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8 |
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Section 1.07 |
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Conflict with Trust Indenture Act |
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9 |
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Section 1.08 |
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Effect of Headings and Table of Contents |
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9 |
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Section 1.09 |
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Successors and Assigns |
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9 |
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Section 1.10 |
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Separability Clause |
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9 |
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Section 1.11 |
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Benefits of Indenture |
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9 |
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Section 1.12 |
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Governing Law |
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9 |
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Section 1.13 |
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Legal Holidays |
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9 |
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Section 1.14 |
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Language of Notices, Etc. |
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9 |
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Section 1.15 |
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Interest Limitation |
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10 |
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Section 1.16 |
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No Personal Liability of Officers, Directors, Employees or Shareholders |
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10 |
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Section 1.17 |
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Applicability of Depositary |
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10 |
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Section 1.18 |
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Force Majeure |
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10 |
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Section 1.19 |
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U.S.A. Patriot Act |
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11 |
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ARTICLE II SECURITY FORMS |
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11 |
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Section 2.01 |
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Forms Generally |
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11 |
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Section 2.02 |
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Form of Face of Security |
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11 |
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Section 2.03 |
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Form of Reverse of Security |
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15 |
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Section 2.04 |
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Global Securities |
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18 |
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Section 2.05 |
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Form of Trustees Certificate and Authorization |
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19 |
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ARTICLE III THE SECURITIES |
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19 |
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Section 3.01 |
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Amount Unlimited; Issuable in Series |
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19 |
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Section 3.02 |
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Denominations |
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21 |
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Section 3.03 |
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Execution, Authentication, Delivery and Dating |
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22 |
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Section 3.04 |
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Temporary Securities |
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23 |
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Section 3.05 |
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Registration, Registration of Transfer and Exchange |
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23 |
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Section 3.06 |
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Mutilated, Destroyed, Lost and Stolen Securities |
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24 |
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Section 3.07 |
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Payment of Interest; Interest Rights Preserved |
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25 |
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Section 3.08 |
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Persons Deemed Owners |
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26 |
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Section 3.09 |
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Cancellation |
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26 |
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Section 3.10 |
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Computation of Interest |
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26 |
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Section 3.11 |
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CUSIP Numbers |
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27 |
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ARTICLE IV SATISFACTION AND DISCHARGE |
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27 |
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Section 4.01 |
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Satisfaction and Discharge of Indenture |
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27 |
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Section 4.02 |
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Application of Trust Money |
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28 |
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ARTICLE V REMEDIES |
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28 |
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Section 5.01 |
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Events of Default |
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28 |
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Section 5.02 |
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Acceleration of Maturity; Rescission and Annulment |
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28 |
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Section 5.03 |
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Collection of Indebtedness and Suits for Enforcement by Trustee |
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29 |
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Section 5.04 |
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Trustee May File Proofs of Claim |
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30 |
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Section 5.05 |
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Trustee May Enforce Claims Without Possession of Securities |
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30 |
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Section 5.06 |
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Application of Money Collected |
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30 |
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Section 5.07 |
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Limitation on Suits |
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31 |
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Section 5.08 |
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Unconditional Right of Holders to Receive Principal, Premium and Interest |
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31 |
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Section 5.09 |
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Restoration of Rights and Remedies |
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31 |
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Section 5.10 |
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Rights and Remedies Cumulative |
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31 |
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Section 5.11 |
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Delay or Omission Not Waiver |
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32 |
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Section 5.12 |
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Control by Holders |
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32 |
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Section 5.13 |
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Waiver of Past Defaults |
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32 |
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Section 5.14 |
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Undertaking for Costs |
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32 |
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ARTICLE VI THE TRUSTEE |
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33 |
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Section 6.01 |
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Certain Duties and Responsibilities |
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33 |
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Section 6.02 |
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Notice of Defaults |
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33 |
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Section 6.03 |
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Certain Rights of Trustee |
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34 |
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Section 6.04 |
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Not Responsible for Recitals or Issuance of Securities |
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35 |
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Section 6.05 |
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May Hold Securities |
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35 |
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Section 6.06 |
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Money Held in Trust |
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35 |
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Section 6.07 |
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Compensation and Reimbursement |
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35 |
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Section 6.08 |
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Disqualification; Conflicting Interests |
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36 |
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Section 6.09 |
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Corporate Trustee Required; Eligibility |
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36 |
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Section 6.10 |
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Resignation and Removal; Appointment of Successor |
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36 |
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Section 6.11 |
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Acceptance of Appointment by Successor |
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37 |
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Section 6.12 |
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Merger, Conversion, Consolidation or Succession to Business |
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38 |
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Section 6.13 |
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Preferential Collection of Claims Against the Company |
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38 |
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Section 6.14 |
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Appointment of Authenticating Agent |
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38 |
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ARTICLE VII HOLDERS LISTS AND REPORTS BY TRUSTEE AND THE COMPANY |
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39 |
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Section 7.01 |
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The Company to Furnish Trustee Names and Addresses of Holders |
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39 |
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Section 7.02 |
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Preservation of Information; Communications to Holders |
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39 |
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Section 7.03 |
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Reports by Trustee |
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40 |
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Section 7.04 |
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Reports by the Company |
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40 |
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ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE |
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40 |
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Section 8.01 |
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The Company May Consolidate, Etc., Only on Certain Terms |
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40 |
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Section 8.02 |
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Successor Substituted |
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41 |
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ARTICLE IX SUPPLEMENTAL INDENTURES |
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41 |
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Section 9.01 |
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Supplemental Indentures without Consent of Holders |
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41 |
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Section 9.02 |
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Supplemental Indentures with Consent of Holders |
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42 |
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Section 9.03 |
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Execution of Supplemental Indentures |
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42 |
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Section 9.04 |
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Effect of Supplemental Indentures |
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43 |
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Section 9.05 |
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Conformity with Trust Indenture Act |
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43 |
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Section 9.06 |
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Reference in Securities to Supplemental Indentures |
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43 |
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ARTICLE X COVENANTS |
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43 |
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Section 10.01 |
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Payment of Principal, Premium (if any) and Interest |
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43 |
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Section 10.02 |
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Maintenance of Office or Agency |
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43 |
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Section 10.03 |
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Money for Securities Payments to Be Held in Trust |
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44 |
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Section 10.04 |
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Statement by Officers as to Default |
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44 |
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Section 10.05 |
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Waiver of Certain Covenants |
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45 |
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ARTICLE XI REDEMPTION OF SECURITIES |
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45 |
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Section 11.01 |
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Applicability of Article |
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45 |
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Section 11.02 |
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Election to Redeem; Notice to Trustee |
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45 |
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Section 11.03 |
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Selection by Trustee of Securities to be Redeemed |
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45 |
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Section 11.04 |
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Notice of Redemption |
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46 |
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Section 11.05 |
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Deposit of Redemption Price |
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46 |
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Section 11.06 |
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Securities Payable on Redemption Date |
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46 |
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Section 11.07 |
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Securities Redeemed in Part |
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47 |
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ARTICLE XII SINKING FUNDS |
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47 |
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Section 12.01 |
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Applicability of Article |
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47 |
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Section 12.02 |
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Satisfaction of Sinking Fund Payments with Securities |
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47 |
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Section 12.03 |
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Redemption of Securities for Sinking Fund |
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47 |
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ARTICLE XIII DEFEASANCE |
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48 |
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Section 13.01 |
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Applicability of Article |
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48 |
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Section 13.02 |
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Legal Defeasance |
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48 |
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Section 13.03 |
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Covenant Defeasance |
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49 |
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Section 13.04 |
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Application by Trustee of Funds Deposited for Payment of Securities |
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50 |
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Section 13.05 |
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Repayment to the Company |
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50 |
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Section 13.06 |
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Reinstatement |
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50 |
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ARTICLE XIV SUBORDINATION OF SECURITIES |
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51 |
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Section 14.01 |
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Securities Subordinated to Senior Debt |
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51 |
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iv
INDENTURE dated as of ,
2015, between FINANCIAL INSTITUTIONS, INC. a New York corporation (the Company), having its principal office at 220 Liberty Street, Warsaw, New York 14569, and Wilmington Trust, National Association, a national banking association (the
Trustee), having an office at 1100 North Market Street, Wilmington, Delaware 19890.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured
subordinated debentures, notes or other evidences of indebtedness (the Securities), to be issued in one or more series as provided in this Indenture.
All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act that are required to be a part of this Indenture and, to the extent
applicable, shall be governed by such provisions.
WITNESSETH:
NOW, THEREFORE, THIS INDENTURE
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 any series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
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 in the United States, and, except as otherwise herein expressly provided, the term generally accepted accounting principles with respect to any
computation required or permitted hereunder shall mean such accounting principles as are generally accepted in the United States at the date of such computation;
(4) the words herein, hereof and hereunder and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other subdivision;
(5) the words Article and Section refer to
an Article and Section, respectively, of this Indenture; and
(6) or is not exclusive.
Act, when used with respect to any Holder, has the meaning specified in Section 1.04.
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.
Authenticating Agent means any Person authorized by the Trustee pursuant to Section 6.14 to act on behalf of the Trustee to
authenticate Securities of one or more series.
Authorized Newspaper means a newspaper, in the English language or in an
official language of the country of publication, customarily published on each Business Day, whether or not published on Saturdays, Sundays or holidays, and of general circulation in the place in connection with which the term is used or in the
financial community of such place.
Bankruptcy Law means Title 11, U.S. Code, or any similar federal or state law for the
relief of debtors or the protection of creditors.
Board of Directors means the board of directors of the Company, or the
executive or any other committee of that board duly authorized to act in respect thereof.
Board Resolution means a copy of a
resolution certified by the Corporate Secretary of the Company, the principal financial officer of the Company or any other authorized officer of the Company or a Person duly authorized by any of them, to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
Business Day
means any day other than (i) a Saturday or Sunday, (ii) a day on which banking institutions in The City of New York, New York or the principal Place of Payment are authorized or required by law, regulation or executive order to remain
closed or (iii) a day on which the Corporate Trust Office of the Trustee is closed for business.
Commission means the
Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the
Trust Indenture Act, then the body performing such duties at such time.
Company means the Person named as the
Company 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 Company shall mean such successor Person.
Company Request or Company Order means a written request or order signed in the name of the Company by the Chairman of
the Board, the Vice Chairman, the President or a Vice President of the Company, and delivered to the Trustee.
Corporate Trust
Office means the office of the Trustee at which at any particular time its corporate trust business related to this Indenture shall be principally administered, which at the date hereof is 1100 North Market Street, Wilmington, Delaware 19890,
Attention: Financial Institutions Inc. Administrator, or at such other address as to which the Trustee may give notice to the Company from time to time.
Corporation includes corporations, associations, partnerships (general or limited), limited liability companies, joint-stock
companies and business trusts.
Covenant defeasance has the meaning specified in Section 13.03.
Custodian means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
2
Debt means any debt for money borrowed.
Default means, with respect to a series of Securities, any event which is, or after the giving of notice or lapse of time or both
would become, an Event of Default with respect to Securities of such series.
Defaulted Interest has the meaning specified in
Section 3.07.
Defeasance has the meaning specified in Section 13.02.
Definitive Security means a Security other than a Global Security or a temporary Security.
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 3.01, until a successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter shall mean or include each Person which is then a Depositary hereunder, and if at any time there is more than one such Person, shall be a collective reference to such Persons.
Dollar or $ means the coin or currency of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Event of Default has the meaning specified in Section 5.01.
Exchange Act means the Securities Exchange Act of 1934, as amended from time to time, and any statute successor thereto.
Fiscal Year means, with respect to the Company, each 12-month period beginning on January 1 and ending on December 31;
provided, however, that, with respect to a series of Securities, the first fiscal year will begin on the date such series of Securities is authenticated and delivered under this Indenture. The Company will notify the Trustee in writing if its fiscal
year changes.
Global Security means a Security in global form that evidences all or part of the Securities of any series and
is registered in the name of the Depositary for such Securities or a nominee thereof.
Holder means a Person in whose name a
Security is registered in the Security Register.
Indenture means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, 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 also shall include the terms of particular series of Securities established as
contemplated by Section 3.01.
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 Security, means the Stated Maturity of an installment of interest on such Security.
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 5.01(3).
3
Officers Certificate of a Person means a certificate signed by the Chairman of
the Board, the Vice Chairman, the President or a Vice President of the Person, or if such Person is a partnership, of its general partner, and delivered to the Trustee. The officer or such other Person (as applicable) signing an Officers
Certificate given pursuant to Section 10.04 shall be the principal executive, financial or accounting officer of the Person, or if such Person is a partnership, of its general partner.
Opinion of Counsel means a written opinion of legal counsel, who may be an employee of or counsel for the Company, which opinion
shall comply with the provisions of Section 1.02 and Section 1.03. Such counsel shall be acceptable to the Trustee, whose acceptance shall not be unreasonably withheld.
Original Issue Discount Security means any Security which provides for an amount less than the stated principal amount thereof to
be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
Outstanding,
when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore previously canceled by the Trustee or delivered to the Trustee for cancellation pursuant to a
Company Order;
(ii) 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 Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities; provided, however, that, if
such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor has been made;
(iii) Securities which have been paid pursuant to Section 3.06 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 that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company; and
(iv) Securities, except to the extent provided in Section 13.02
and Section 13.03, with respect to which the Company has effected defeasance or covenant defeasance as provided in Article XIII;
provided, however,
that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, (A) the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon acceleration of the Maturity thereof on such date pursuant to
Section 5.02, (B) the principal amount of a Security denominated in one or more currencies or currency units other than U.S. dollars shall be the U.S. dollar equivalent of such currencies or currency units, determined in the manner
provided as contemplated by Section 3.01 on the date of original issuance of such Security, of the principal amount (or, in the case of an Original Issue Discount Security, the U.S. dollar equivalent (as so determined) on the date of original
issuance of such Security, of the amount determined as provided in Clause (A) above) of such Security, and (C) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company 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 or waiver, only Securities which
the Trustee knows to be so owned shall be so disregarded. Securities so owned as described in Clause (C) above which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee
the pledgees right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.
Paying Agent means any Person authorized by the Company to pay the principal of or any premium or interest on any Securities on
behalf of the Company.
4
Periodic Offering means an offering of Securities of a series from time to time, the
specific terms of which Securities, including, without limitation, the rate or rates of interest or formula for determining the rate or rates of interest thereon, if any, the Stated Maturity or Stated Maturities thereof, the original issue date or
dates thereof, the redemption provisions, if any, with respect thereto, and any other terms specified as contemplated by Section 3.01 with respect thereto, are to be determined by the Company upon the issuance of such Securities.
Person means any individual, corporation, partnership, joint venture, trust, unincorporated organization or government or any
agency or political subdivision thereof.
Place of Payment, when used with respect to the Securities of any series, means,
unless otherwise specifically provided for with respect to such series as contemplated by Section 3.01, the office or agency of the Company (which may be an office of the Paying Agent) in the contiguous United States and such other place or
places where, subject to the provisions of Section 10.02, the principal of and any premium and interest on the Securities of that series are payable as specified as contemplated by Section 3.01.
Predecessor Security of any particular Security means every previous Security evidencing all or a portion of the same Debt as that
evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.06 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 by the Company 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 the date specified
for that purpose as contemplated by Section 3.01.
Responsible Officer when used with respect to the Trustee, means any
officer in the corporate trust department of the Trustee with direct responsibility for the administration of this Indenture, and also means, with respect to a particular corporate trust matter relating to this Indenture, any other officer of the
Trustee to whom such matter is referred because of such persons knowledge of and familiarity with the particular subject.
Securities has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated
and delivered under this Indenture.
Security Register and Security Registrar have the respective meanings
specified in Section 3.05.
Senior Debt means: (i) the principal and any premium or interest for money borrowed or
purchased by the Company (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Company, whether or not such claim for post petition interest is allowed in such proceedings);
(ii) the principal and any premium or interest for money borrowed or purchased by another Person and guaranteed by the Company; (iii) any deferred obligation for the payment of the purchase price of property or assets evidenced by a note
or similar agreement; (iv) an obligation arising from direct credit substitutes; and (v) any obligation associated with derivative products such as interest and foreign exchange rate contracts, commodity contracts and similar arrangements;
in each case, whether outstanding on the date this Subordinated Indenture becomes effective, or created, assumed or incurred after that date; provided, however, that Senior Debt excludes (a) any indebtedness, obligation or liability referred to
in clauses (i) through (v) above as to which, in the instrument creating or evidencing that indebtedness, obligation or liability, it is expressly provided that the indebtedness, obligation or liability is junior to, or ranks equally in
right of payment with, the Securities; and (b) [specific items to be discussed].
Special Record Date for the payment of
any Defaulted Interest means a date fixed by the Company pursuant to Section 3.07.
5
Stated Maturity, when used with respect to the principal of 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, with respect to any Person, any entity of which more than 50% of the total voting power of the equity interests
entitled, without regard to the occurrence of any contingency, to vote in the election of directors, managers or trustees thereof; or any partnership of which more than 50% of the partners equity interests, considering all partners
equity interests as a single class, is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or combination thereof.
Trust Indenture Act means the Trust Indenture Act of 1939, as 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 each Trustee with respect to Securities of that series.
U.S. Government Obligations means securities which are (i) direct obligations of the United States for the payment of which
its full faith and credit is pledged, or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States, the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States, each of which are not callable or redeemable at the option of the issuer thereof.
Vice
President, when used with respect to the Company, means any vice president of the Company, or when used with respect to the Trustee, means any vice president of the Trustee.
Section 1.02 |
Compliance Certificates and Opinions |
Upon any application or request by the Company to
the Trustee to take or refrain from taking any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officers Certificate stating that, in the opinion of the signers, all conditions precedent and covenants,
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 have been complied with. Each such certificate or
opinion shall be given in the form of an Officers Certificate, if to be given by officers of the Company, or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture Act and any other
requirements set forth in this Indenture.
Every Officers Certificate or Opinion of Counsel (except for certificates provided for in
Section 10.04) 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.
6
Section 1.03 |
Form of Documents Delivered to Trustee |
In any case where several matters are required
to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but
one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company, stating that the information with respect
to such factual matters is in the possession of the Company, unless such counsel knows that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Section 1.04 |
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 or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed (either physically or by means of a facsimile
or an electronic transmission, provided that such electronic transmission is transmitted through the facilities of a Depositary) by such Holders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are delivered (either physically or by means of a facsimile or an electronic transmission, provided that such electronic transmission is transmitted through the facilities of a
Depositary) to the Trustee and, where it is hereby expressly required, to the Company. 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 315 of the Trust Indenture Act) conclusive
in favor of the Trustee and the Company, if made in the manner provided in this Section.
Security Holders, may make, give or take, by a
proxy or proxies, duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders, and a Depositary that is a Holder of a Global
Security may provide its proxy or proxies to the beneficial owners of interests in any such Global Security.
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 of any such instrument or writing or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.
The ownership, principal amount and serial numbers of Securities held by any Person, and the date of commencement of such Persons
holding the same, shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other action of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the
7
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 Company in reliance thereon, whether
or not notation of such action is made upon such Security.
Without limiting the foregoing, a Holder entitled hereunder to give or 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 different part of such principal amount.
The Company may set any day as the record date for the purpose of determining the
Holders of Outstanding Securities of any series entitled to give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given or taken by Holders of Securities of
such series, but the Company shall have no obligation to do so. With regard to any record date set pursuant to this paragraph, the Holders of Outstanding Securities of the relevant series on such record date (or their duly appointed agents), and
only such Persons, shall be entitled to give or take the relevant action, whether or not such Holders remain Holders after such record date.
Section 1.05 |
Notices, Etc., to Trustee and the Company |
Any request, demand, authorization,
direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made in writing and actually received by
the Trustee at its office at 1100 North Market Street, Wilmington, Delaware 19890, Attention: Financial Institutions Inc. Administrator or at any other address previously furnished in writing by the Trustee, or
(2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to the Company, addressed to it at 220 Liberty Street, Warsaw, New York 14569, to the attention of the Corporate Secretary, or at any other address previously furnished in writing to the Trustee
by the Company.
Section 1.06 |
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 (if international mail, by air mail), 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. Any notice mailed to a Holder in the manner herein prescribed shall be conclusively deemed to
have been received by such Holder, whether or not such Holder actually receives such notice.
Notwithstanding any other provision of this
Indenture or any Security, where this Indenture or any Security provides for notice of any event (including any notice of redemption) to a Holder of 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) pursuant to the standing instructions from the Depositary (or its designee), including by electronic mail in accordance with accepted practices at the Depositary.
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.
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In case 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 Company shall constitute a sufficient notification for every purpose hereunder.
Section 1.07 |
Conflict with Trust Indenture Act |
If any provision hereof limits, qualifies or
conflicts with a provision of the Trust Indenture Act that is required under such Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or excluded, as the case may be.
Section 1.08 |
Effect of Headings and Table of Contents |
The Article and Section headings herein and
the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 1.09 |
Successors and Assigns |
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 1.10 |
Separability Clause |
In case any provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.11 |
Benefits of Indenture |
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their successors hereunder, the holders of Senior Debt and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 1.12 |
Governing Law |
This Indenture and the Securities shall be governed by and construed in
accordance with the law of the State of New York.
Section 1.13 |
Legal Holidays |
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day, then (notwithstanding any other provision of this Indenture or of the Securities (other than a provision of the Securities of any series 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 on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity, provided that no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
Section 1.14 |
Language of Notices, Etc. |
Any request, demand, authorization, direction, notice,
consent, waiver or Act required or permitted under this Indenture shall be in the English language, except that any published notice may be in an official language of the country of publication.
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Section 1.15 |
Interest Limitation |
It is the intention of the Company to conform strictly to all
applicable usury laws and any subsequent revisions, repeals or judicial interpretations thereof. Accordingly, if the transactions contemplated hereby would be usurious under any applicable law then, in that event, notwithstanding anything to the
contrary in the Securities or this Indenture, it is agreed as follows: (i) the aggregate of all consideration which constitutes interest under applicable law with respect to a Security shall under no circumstances exceed the maximum amount
allowed by applicable law, and any excess shall be credited to the principal amount of such Security (or, if the principal amount of such Security shall have been paid in full, refunded to the Company), to the extent permitted by applicable law; and
(ii) in the event that the maturity of any Security is accelerated or in the event of any redemption of such Security, then such consideration that constitutes interest under applicable law may never include more than the maximum amount allowed
by applicable law, and any excess shall be credited to the principal amount of such Security (or, if the principal amount of such Security shall be paid in full, refunded to the Company), to the extent permitted by applicable law. All calculations
(as determined by the Company and communicated to the Trustee and the Paying Agent in a Company Order) made to compute the rate of interest with respect to a Security for the purpose of determining whether such rate exceeds the maximum amount
allowed by applicable law shall be made, to the extent permitted by such applicable law, by allocating and spreading during the period of the full stated term of such Security all interest any time contracted for, taken, reserved, charged or
received by such Holder or by the Trustee on behalf of any such Holder in connection therewith so that the amount or rate of interest charged for any and all periods of time during the term of the Security does not exceed the maximum amount or rate
of interest allowed to be charged by law during the relevant period of time. Notwithstanding any of the foregoing, if at any time applicable laws shall be changed so as to permit a higher rate or amount of interest to be charged than that permitted
prior to such change, then unless prohibited by law, references in this Indenture or any Security to applicable law when used in the context of determining the maximum interest or rate of interest that can be charged shall be deemed to
refer to such applicable law as so amended to allow the greater amount or rate of interest. Neither the Trustee nor the Paying Agent shall have any duty or responsibility to verify any calculations or determinations of the Company hereunder.
The right to accelerate maturity of any Security does not include the right to accelerate any interest which has not otherwise accrued to the
date of such acceleration, provided, however, that the foregoing shall not prohibit the continuing accrual after acceleration of interest in accordance with the terms of the Indenture and such Security.
Section 1.16 |
No Personal Liability of Officers, Directors, Employees or Shareholders |
Obligations of
the Company under this Indenture and the Securities hereunder are payable only out of cash flow and assets of the Company. Each Holder of a Security by its acceptance thereof, will be deemed to have agreed in this Indenture that no director,
officer, employee, or shareholder, as such, of the Company, the Trustee, or any Affiliate of any of the foregoing entities shall have any personal liability in respect of the obligations of the Company under this Indenture or such Securities by
reason of his, her or its status. The agreements set forth in this Section are part of the consideration for the issuance of the Securities.
Section 1.17 |
Applicability of Depositary |
Notwithstanding any other provision of this Indenture, so
long as a series of Securities is a Global Security, the parties hereto will be bound at all times by the applicable procedures of the Depositary with respect to such series.
Section 1.18 |
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.
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Section 1.19 |
U.S.A. Patriot Act |
The parties hereto acknowledge that in accordance with
Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or
legal entity that establishes a relationship or opens an account with the Trustee.
Section 1.20 |
Counterpart Originals |
This Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. The exchange of copies of this Indenture and of signature pages by facsimile, PDF or other electronic
transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile, PDF or other
electronic means shall be deemed to be their original signatures for all purposes.
ARTICLE II
SECURITY FORMS
Section 2.01 |
Forms Generally |
The Securities of each series 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 applicable laws or the rules of any securities
exchange or automated quotation system on which the Securities of such series may be listed or traded or of any Depositary therefor or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced by their
execution of the Securities. 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 an authorized officer or other authorized Person
on behalf of the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 3.03 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 2.02 |
Form of Face of Security |
[Insert any legend required by the United States Internal
Revenue Code and the regulations thereunder.]
[If a Global Security, as required by Section 2.04 of this Indenture, insertTHIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR SECURITIES
REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION
OF TRANSFER OF, OR IN EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.]
[If applicable, insertUNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
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SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE
REGISTERED OWNER HEREOF,[CEDE & CO., HAS AN INTEREST HEREIN.]
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FINANCIAL INSTITUTIONS, INC. [TITLE OF SECURITY]
FINANCIAL INSTITUTIONS, INC. a New York corporation (herein called the Company, 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 United States Dollars [state other currency] on , 20 , [if the Security is to bear
interest prior to Maturity, insert, and to pay interest thereon from , 20 , 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,
and at the rate of % per annum on any overdue principal and premium and on any overdue installment of interest]. [If applicable, insert (The amount of interest payable for any period shall be computed on the basis of twelve
30-day months and a 360-day year. The amount of interest payable for any partial period shall be computed on the basis of a 360-day year of twelve 30-day months and the days elapsed in any partial month. In the event that any date on which interest
is payable on this Security is not a Business Day, then a payment of the interest payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of any such delay) with the
same force and effect as if made on the date the payment was originally payable. A Business Day means any day other than (i) a Saturday or Sunday, (ii) a day on which banking institutions in New York or any applicable
Place of Payment are authorized or required by law, regulation or executive order to remain closed or (iii) a day on which the Corporate Trust Office of the Trustee is closed for business.)]. 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, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for shall 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 Company, notice of which 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 or automated quotation system on which the Securities of this series may be listed or traded, and upon such notice as may be required by such
exchange or automated quotation system, all as more fully provided in such 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 of this Security
shall bear interest at the rate of % per annum, which shall accrue from the date of such default in payment to the date payment of such principal has been made or duly provided for. Interest on any overdue principal shall be
payable on demand. Any such interest on any overdue principal that is not so paid on demand shall bear interest at the rate of % per annum, which shall accrue from the date of such demand for payment to the date payment of
such interest has been made or duly provided for, and such interest shall also be payable on demand.)]
[If a Global Security,
insert (Payment of the principal of [(and premium, if any)] and [if applicable, insertany such] interest on this Security will be made by transfer of immediately available funds to a bank account designated by the Holder 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 [state other currency].]
[If a Definitive Security, insert (Payment of the principal of [(and premium, if any)] and [if applicable, insertany such]
interest on this Security will be made at the office or agency of the Company maintained for that purpose in , [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] [state other currency] [or subject to any laws or regulations applicable thereto and to the right of the Company (as provided
in the Indenture) to rescind the designation of any such Paying Agent, at the [main] offices of in
and in ,
or at such other offices or agencies as the Company may designate, by [United States Dollar]
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[state other currency] check drawn on, or transfer to a [United States Dollar] account maintained by the payee with, a bank in
(so long as the applicable Paying Agent has received proper transfer instructions in writing at least 15 days prior to the
payment date)] [if applicable, insert (; provided, however, that payment of interest may be made at the option of the Company through the Paying Agent by [United States Dollar] [state other currency] check mailed to the addresses of the Persons
entitled thereto as such addresses shall appear in the Security Register] [or by transfer to a [United States Dollar] [state other currency] account maintained by the payee with a bank in
(so long as the applicable Paying Agent has received proper transfer instructions in writing by the Record Date prior to the
applicable Interest Payment Date)].]
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.
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.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
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FINANCIAL INSTITUTIONS, INC. |
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Name: |
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Title: |
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
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Wilmington Trust, National Association, as Trustee |
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Authorized Signatory |
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Section 2.03 |
Form of Reverse of Security |
This Security is one of a duly authorized issue of
securities of the Company (the Securities), issued and to be issued in one or more series under an Indenture dated as of
(the Indenture), between the Company and Wilmington Trust, National Association, as Trustee (the
Trustee, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, obligations,
duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. As provided in the Indenture, the Securities may be issued in
one or more series, which different series may be issued in various aggregate principal amounts, may mature at different times, may bear interest, if any, at different rates, may be subject to different redemption provisions, if any, may be subject
to different sinking, purchase or analogous funds, if any, may be subject to different covenants and Events of Default and may otherwise vary as in the Indenture provided or permitted. This Security is one of the series designated on the face hereof
[if applicable, insert, limited in aggregate principal amount to U.S.$ ].
[If
applicable, insertThe Securities of this series are subject to redemption upon not less than 30 nor more than 60 days notice by mail, [if applicable, insert, or while Securities are in global form delivered through the applicable
procedures of the Depositary][if applicable, insert(1) on in any year commencing with the year 20 and ending with the year 20 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, inserton or after , 20 ], as a whole or
in part, at the election of the Company, at the following Redemption Prices (expressed as percentages of the principal amount): If redeemed [if applicable, inserton or before
, 20 , %, and if redeemed] during the 12-month period beginning
of the years indicated,
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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, but excluding, 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, insertThe Securities of this series are subject to redemption upon not less than 30 nor more than 60 days notice
by mail, (1) on in any year commencing with the year 20 and ending with the year
20 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, inserton or after , 20 , as a whole or in part, at the election of the Company, 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,
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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, but excluding, 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, insertThe sinking fund for this series provides for the redemption in each year beginning with the year
20 and ending with the year 20 of [if applicable,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 Company otherwise than through [if applicable, mandatory] sinking fund payments may be credited against subsequent [if applicable,mandatory]
sinking fund payments otherwise required to be made [if applicable,in the inverse order in which they become due].]
[If the
Security is subject to redemption in part of any kind, insertIn 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, insertThe Securities of this series are not redeemable prior to
Stated Maturity.]
[If the Security is not an Original Issue Discount Security, insertIf an Event of Default with respect to
Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insertIf an Event of Default with respect to Securities of this series shall
occur and be continuing, an amount of principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. Such amount shall be equal toinsert formula for determining the
amount. Upon payment (1) of the amount of principal so declared due and payable, and (2) of interest on any overdue principal and overdue interest, all of the Companys obligations in respect of the payment of the principal of 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 Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of
not less than the Holders of a majority in aggregate principal amount of the Outstanding Securities of all series to be affected (voting as one class). The Indenture also contains provisions permitting the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all affected series (voting as one class), on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture. The Indenture
permits, with certain exceptions as therein provided, the Holders of a majority in principal amount of Securities of any series then Outstanding to waive past defaults under the Indenture with respect to such series 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 as Trustee and offered the Trustee reasonable indemnity and the Trustee shall not have received from the Holders of a majority in principal amount of Securities of
this series
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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, without the consent of the Holder, alter or
impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and [any premium and] interest on this Security at the times, place(s) and rate, and in the coin or currency, herein prescribed, except for
Section 1.15 of the Indenture (which limits interest to the maximum amount permissible by law), the provisions of which are incorporated herein by reference.
[If a Global Security, insertThis Global Security or portion hereof may not be exchanged for Definitive Securities of this series except
in the limited circumstances provided in the Indenture.
The holders of beneficial interests in this Global Security will not be entitled
to receive physical delivery of Definitive Securities except as described in the Indenture and will not be considered the Holders thereof for any purpose under the Indenture.]
[If a Definitive Security, insertAs provided in the Indenture and subject to certain limitations therein set forth, the transfer of this
Security is registerable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in [if applicable, insert any place where the principal of and any premium and interest on
this Security are payable] [if applicable, insert ] [, or, subject to any laws or regulations applicable thereto and to the
right of the Company (limited as provided in the Indenture) to rescind the designation of any such transfer agent, at the [main] offices of
in and
in or at such other offices or agencies as the Company may designate]], duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new 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 minimum denominations of U.S. $ [state other currency] and any integral multiple of
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 Company 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 Company, the Trustee and any agent of the Company 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 is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
This Security is subordinated in right of payment to Senior Debt,
to the extent provided in the Indenture.
Obligations of the Company under the Indenture and the Securities thereunder, including this
Security, are payable only out of cash flow and assets of the Company. Each Holder of a Security by its acceptance hereof, will be deemed to have agreed in the Indenture that no director, officer, employee, or shareholder, as such, of the Company,
the Trustee, or any Affiliate of any of the foregoing entities shall have any personal liability in respect of the obligations of the Company under the Indenture or such Securities by reason of his, her or its status.
The Indenture contains provisions that relieve the Company from the obligation to comply with certain restrictive covenants in the Indenture
and for satisfaction and discharge at any time of the entire indebtedness upon compliance by the Company with certain conditions set forth in the Indenture.
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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.
[If a Definitive Security, insert as a separate page
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please Print or Typewrite Name and Address of Assignee) the within instrument of FINANCIAL INSTITUTIONS, INC., and does hereby
irrevocably constitute and appoint Attorney to transfer said instrument on the books of the within-named Company, with full
power of substitution in the premises.
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Other Identifying Number of Assignee: |
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Dated: |
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(Signature) |
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Signature Guarantee: |
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(Participant in a Recognized Signature
Guaranty Medallion Program)
NOTICE: The
signature to this assignment must correspond with the name as written upon the face of the within instrument in every particular, without alteration or enlargement or any change whatever.]
Section 2.04 |
Global Securities |
Every Global Security authenticated and delivered hereunder shall
bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF
AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL
SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
If Securities of a series are issuable in whole or in part in
the form of one or more Global Securities, as contemplated by Section 3.01, then, notwithstanding Clause (9) of Section 3.01 and the provisions of Section 3.02, any Global Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may provide that it shall represent the aggregate amount of Outstanding Securities from time to time endorsed thereon and that the aggregate amount of Outstanding Securities represented
thereby may from time to time be reduced or increased, as the case may be, to reflect exchanges. Any endorsement of a Global Security to reflect the amount, or any reduction or increase in the amount, of Outstanding Securities represented thereby
shall be made in such manner and upon instructions given by such Person or Persons as shall be specified therein or in a Company Order. Subject to the provisions of Section 3.03, Section 3.04 and Section 3.05, the Trustee shall
deliver and redeliver any Global Security in the manner and upon instructions given by the Person or Persons specified therein or in the applicable Company Order. Any instructions by the Company with respect to endorsement or delivery or redelivery
of a Global Security shall be in a Company Order (which need not comply with Section 1.02 and need not be accompanied by an Opinion of Counsel).
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The provisions of the last sentence of Section 3.03 shall apply to any Security represented
by a Global Security if such Security was never issued and sold by the Company and the Company delivers to the Trustee the Global Security together with a Company Order (which need not comply with Section 1.02 and need not be accompanied by an
Opinion of Counsel) with regard to the reduction or increase, as the case may be, in the principal amount of Securities represented thereby, together with the written statement contemplated by the last sentence of Section 3.03.
Section 2.05 |
Form of Trustees Certificate and Authorization |
The Trustees 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.
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Wilmington Trust, National Association, as Trustee |
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Authorized Signatory |
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Date: |
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ARTICLE III
THE SECURITIES
Section 3.01 |
Amount Unlimited; Issuable in Series |
The aggregate principal amount of Securities which
may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution (and, subject to Section 3.03, to the extent established pursuant to rather than set forth in a Board Resolution, in an Officers Certificate or Company Order setting forth, or determining
the manner of, such establishment) or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series,
(1) the form and title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any other
series);
(2) the 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 3.04, Section 3.05, Section 3.06,
Section 9.06 or Section 11.07 and except for any Securities which, pursuant to Section 3.03, are deemed never to have been authenticated and delivered hereunder);
(3) the date or dates on which the Securities will be issued and on which the principal of, and premium, if any, on the Securities of the
series is payable or the method of determination thereof;
(4) the rate or rates (which may be fixed or variable) at which the Securities
of the series shall bear interest, if any, or the method of determination thereof, the date or dates from which such interest shall accrue, or the method of determination thereof, the Interest Payment Dates on which any such interest shall be
payable and the Regular Record Date for any interest payable on any Interest Payment Date;
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(5) the place or places where, subject to the provisions of Section 10.02, the principal of
and any premium and interest on Securities of the series shall be payable, Securities of the series may be surrendered for registration of transfer, Securities of the series may be surrendered for exchange and notices, and demands to or upon the
Company in respect of the Securities of the series and this Indenture may be served;
(6) the period or periods, if any, within which, the
price or prices at which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company or otherwise, if the Company is to have that option;
(7) the obligation, if any, and the option, if any, of the Company to redeem, purchase or repay Securities of the series pursuant to any
sinking fund or analogous provisions or upon the happening of a specified event or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the
series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
(8) if other than minimum denominations
of $1,000 and any integral multiple in excess thereof, the denominations in which Securities of the series shall be issuable;
(9) whether
payment of principal of and premium, if any, and interest, if any, on the Securities of the series shall be without deduction for taxes, assessments or governmental charges paid by Holders of the series;
(10) the currency, currencies or currency units in which payment of the principal of and any premium and interest on any Securities of the
series shall be denominated, payable, redeemable or purchasable if other than the currency of the United States of America and the manner of determining the equivalent thereof in the currency of the United States of America for purposes of the
definition of Outstanding in Section 1.01;
(11) if the amount of payments of principal of or any premium or interest on
any Securities of the series may be determined with reference to an index, the manner in which such amounts shall be determined;
(12) if
the principal of or any premium or interest on any Securities of the series is to be payable, at the election of the Company or a Holder thereof, in one or more currencies or currency units other than that or those in which the Securities are stated
to be payable, the currency, currencies or currency units in which payment of the principal of and any premium and interest on Securities of such series as to which such election is made shall be payable, and the periods within which and the terms
and conditions upon which such election is to be made;
(13) the right, if any, of the Company to defer payments of interest by extending
the interest payment periods and specify the duration of such extension, the Interest Payment Dates on which such interest shall be payable and whether and under what circumstances additional interest on amounts deferred shall be payable;
(14) if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 5.02 or provable in bankruptcy pursuant to Section 5.04 or the method of determination thereof;
(15) if and as applicable, that the Securities of the series shall be issuable in whole or in part in the form of one or more Global
Securities (and whether in temporary or permanent global form) and, in such case, the Depositary or Depositaries for such Global Security or Global Securities and any circumstances other than those set forth in Section 3.05 in which any such
Global Security may be transferred to, and registered and exchanged for Securities registered in the name of, a Person other than the Depositary for such Global Security or a nominee thereof and in which any such transfer may be registered;
(16) any deletions from, modifications of or additions to the Events of Default set forth in Section 5.01 or the covenants of the Company
set forth in Article X pertaining to the Securities of the series;
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(17) if and the terms and conditions upon which any Securities of the series may be converted
into or exchanged for securities, which may include, without limitation, capital stock, of any class or series of the Company or any other issuer;
(18) if the amount of payments of principal of or any premium or interest on any Securities of the series may be determined with reference to
an index, including, but not limited to an index based on a currency or currencies other than that in which the Securities of that series are payable, or any other type of index, the manner in which such amounts shall be determined;
(19) if other than as provided in Section 13.02 and Section 13.03, the terms and conditions upon which and the manner in which such
series of Securities may be defeased or discharged;
(20) if other than the Trustee, the identity of any other trustee, the Security
Registrar, any Paying Agent and any other agent with respect to the Securities of such series;
(21) any restrictions or other provisions
with respect to the transfer or exchange of the Securities; and
(22) any other terms of the Securities of the series (which terms shall
not be inconsistent with the provisions of this Indenture, except as permitted by Section 9.01(3)).
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 or Officers Certificate referred to above or in any such indenture supplemental hereto.
Any such Board Resolution or Officers Certificate referred to above with respect to Securities of any series filed with the Trustee on
or before the initial issuance of the Securities of such series shall be incorporated herein by reference with respect to Securities of such series and shall thereafter be deemed to be a part of the Indenture for all purposes relating to Securities
of such series as fully as if such Board Resolution or Officers Certificate were set forth herein in full.
All Securities of any
one series need not be issued at the same time and, unless otherwise provided, a series may be reopened, without the consent of the Holders, for increases in the aggregate principal amount of such series of Securities and issuances of additional
Securities of such series or for the establishment of additional terms with respect to the Securities of such series.
If any of the terms
of the series are established by action taken by or pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by an authorized Officer or other authorized person of the Company and delivered to the Trustee at
or prior to the delivery of the Officers Certificate setting forth, or providing the manner for determining, the terms of the series.
With respect to Securities of a series subject to a Periodic Offering, such Board Resolution or Officers Certificate may provide general
terms for Securities of such series and provide either that the specific terms of particular Securities of such series shall be specified in a Company Order or an indenture supplemental thereto, or that such terms shall be determined by the Company,
or one or more of the Companys agents designated in an Officers Certificate, in accordance with a Company Order.
Section 3.02 |
Denominations |
The Securities of each series shall be issuable only in registered form
without coupons in such minimum denominations as shall be specified as contemplated by Section 3.01. In the absence of any such specified minimum denomination with respect to the Securities of any series, the Securities of such series shall be
issuable in minimum denominations of $1,000 and any integral multiple in excess thereof.
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Section 3.03 |
Execution, Authentication, Delivery and Dating |
The Securities shall be executed on
behalf of the Company by the Chairman of the Board, Vice Chairman, Chief Executive Officer, Chief Financial Officer, President or any Vice President of the Company and need not be attested. 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 Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities;
provided, however, that in the case of Securities offered in a Periodic Offering, the Trustee shall authenticate and deliver such Securities from time to time in accordance with such other procedures acceptable to the Trustee as may be specified by
or pursuant to a Company Order delivered to the Trustee prior to the time of the first authentication of Securities of such series. If the form or terms of the Securities of the series have been established in or pursuant to one or more Board
Resolutions as permitted by Section 2.01 and Section 3.01, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, in
addition to any Officers Certificate and Opinion of Counsel required to be furnished to the Trustee pursuant to Section 1.02, and (subject to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel stating,
(1) if the form and terms (or the manner of determining the terms) of such Securities have been established by or pursuant to Board Resolution
as permitted by Section 2.01, that such form or forms have been established in conformity with the provisions of this Indenture;
(2)
if the terms of such Securities have been, or in the case of Securities of a series offered in a Periodic Offering, will be, established by or pursuant to a Board Resolution as permitted by Section 3.01, that such terms have been, or in the
case of Securities of a series offered in a Periodic Offering, will be, established in conformity with the provisions of this Indenture, subject, in the case of Securities of a series offered in a Periodic Offering, to any conditions specified in
such Opinion of Counsel;
(3) that such Securities, when authenticated and delivered by the Trustee upon receipt of a Company Order and
issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors rights and to general equity principles and entitled to the benefits of this Indenture, equally and
ratably with all other Securities, if any, of such series Outstanding;
(4) such other matters as the Trustee may request; and
(5) if the authentication and delivery relates to a new series of Securities created by an indenture supplemental hereto, also stating that
all conditions precedent to the execution of the supplemental indenture with respect to that series of Securities have been complied with, the Company has the power to execute and deliver any such supplemental indenture and has taken all necessary
action for those purposes and any such supplemental indenture has been executed and delivered and constitutes the legal, valid and binding obligation of the Company enforceable in accordance with its terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, fraudulent conveyance, moratorium or other laws and legal principles affecting creditors rights generally from time to time in effect and to general equitable principles, whether applied in an
action at law or in equity).
If such form or forms 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 Trustees 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.
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With respect to Securities of a series not to be originally issued at one time, the Trustee may
rely upon the Opinion of Counsel and the other documents delivered pursuant to Section 2.01 and Section 3.01 and this Section, as applicable, in connection with the first authentication of Securities of such series and any subsequent
request by the Company to the Trustee to authenticate Securities of such series upon original issuance shall constitute a representation and warranty by the Company that as of the date of such request, the statements made in the Officers
Certificate shall be true and correct as if made on such date.
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 of an authorized signatory, and such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 3.09 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 3.04 |
Temporary Securities |
Pending the preparation of Definitive Securities of any series,
the Company may execute, and upon receipt of the documents required by Section 3.03, together with a Company Order, the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor of the Definitive Securities of like series 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 Company 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 Company maintained pursuant to Section 10.02 for the purpose of exchanges of Securities of such series, without
charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series the Company shall execute and the Trustee shall upon receipt of a Company Order authenticate and deliver in exchange therefor one or more
Definitive Securities of the same series, of any authorized denominations and of a like aggregate principal amount and tenor. 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.
Section 3.05 |
Registration, Registration of Transfer and Exchange |
The Company shall cause to be kept
at the Corporate Trust Office of the Trustee a register (the register maintained in such office or in any other office or agency of the Company in a Place of Payment being herein sometimes referred to as the Security Register) in which,
subject to such reasonable rules as it may prescribe, the Company shall provide for the registration of Securities and of transfers of Securities. The Company shall, prior to the issuance of any Securities hereunder, appoint the Trustee as the
initial Security Registrar for the purpose of registering Securities and transfers of Securities as herein provided. The Company may at any time replace such Security Registrar, change such office or agency or act as its own Security
Registrar. The Company will give prompt written notice to the Trustee of any change of the Security Registrar or of the location of such office or agency. At all reasonable times the Security Register shall be available for inspection by the
Trustee.
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Upon surrender for registration of transfer of any Security of any series at the office or agency
of the Company maintained pursuant to Section 10.02 for such purpose, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same
series, of any authorized denominations and of a like aggregate principal amount and tenor.
At the option of the Holder, Securities of
any series (except a Global Security) may be exchanged for other Securities of the same series, of any authorized denominations and of a like aggregate principal amount and tenor, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee upon receipt of a Company Order shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee or
the Security Registrar, if other than the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed, by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may
require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 3.04 or 11.07 not
involving any transfer.
Neither the Trustee nor the Company shall be required (1) to issue, register the transfer of or exchange
Securities of any series (or of any series and specified tenor, as the case may be) during a period beginning at the opening of business 15 days before the day of delivery of a notice of redemption of Securities of that series selected for
redemption under Section 11.03 and ending at the close of business on the day of such delivery, or (2) 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.
Notwithstanding any other provision in this Indenture and except as otherwise specified as
contemplated by Section 3.01, no Global Security may be transferred to, or registered or exchanged for Securities registered in the name of, any Person other than the Depositary for such Global Security or any nominee thereof, and no such
transfer may be registered, except as provided in this paragraph. Every Security authenticated and delivered upon registration or transfer of, or in exchange for or in lieu of, a Global Security shall be a Global Security, except as provided in this
paragraph. If (1) (A) the Depositary for a Global Security notifies the Company that it is unwilling or unable to continue as Depositary for such Global Security or ceases to be a clearing agency registered under the Exchange Act, and
(B) a successor Depositary is not appointed by the Company within 90 days, (2) an Event of Default has occurred and is continuing with respect to the Securities of such series and the Security Registrar has received a written request
from the Depositary to issue certificated securities in lieu of all or a portion of the Global Securities of such series (in which case the Company shall deliver certificated securities within 30 days of such request) or (3) the Company
determines in its sole discretion that Securities of a series issued in global form shall no longer be represented by a Global Security, then such Global Security may be exchanged by such Depositary for Definitive Securities of the same series, of
any authorized denomination and of a like aggregate principal amount and tenor, registered in the names of, and the transfer of such Global Security or portion thereof may be registered to, such Persons as such Depositary shall direct.
Section 3.06 |
Mutilated, Destroyed, Lost and Stolen Securities |
If any mutilated Security is
surrendered to the Trustee, together with such security or indemnity bond as may be required by the Company or the Trustee to protect each of them and any agent of either of them harmless, the Company shall execute and upon its request 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.
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If there shall be delivered to the Company and the Trustee (1) evidence to their
satisfaction of the destruction, loss or theft of any Security and (2) such security or indemnity bond as may be required by them to protect each of them and any agent of either of them harmless, then, in the absence of notice to the Company or
the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon its request the Trustee shall authenticate and 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. If, after the delivery of such new Security, a bona fide purchaser of the original Security in lieu of which such new Security was issued presents
for payment or registration such original Security, the Trustee shall be entitled to recover such new Security from the party to whom it was delivered or any party taking therefrom, except a bona fide purchaser, and shall be entitled to recover upon
the security or indemnity bond provided therefor to the extent of any loss, damage, cost or expense incurred by the Company and the Trustee in connection therewith.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith. Every new Security of any
series issued pursuant to this Section in exchange for any mutilated Security or in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the mutilated,
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 3.07 |
Payment of Interest; Interest Rights Preserved |
Except as otherwise provided as
contemplated by Section 3.01 with respect to any series of Securities, interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest.
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) after any applicable grace period shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in Clause (1) or (2) below:
The Company 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 Company 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 Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Company 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 Company shall promptly notify the Trustee of such Special Record Date and, in the name and at the expense of the Company, the
Trustee shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be sent to each Holder of Securities of such series at his address as it appears in the Security Register, not less than
10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been 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).
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The Company 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 or automated quotation system on which such Securities may be listed or traded, and upon such notice as may be required by such exchange, if, after notice given by
the Company to the Trustee of the proposed payment pursuant to this Clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 3.05, 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.
For each series of Securities, the Company shall, prior to 10:30 a.m. (Eastern time) on each payment date for principal and premium, if any,
and interest, if any, deposit with the Trustee money in immediately available funds sufficient to make cash payments due on the applicable payment date.
Section 3.08 |
Persons Deemed Owners |
Except as otherwise provided as contemplated by Section 3.01
with respect to any series of Securities, prior to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Security is registered in the
Security Register as the owner of such Security for the purpose of receiving payment of principal of and any premium and (subject to Section 3.05 and Section 3.07) any interest on such Security and for all other purposes whatsoever,
whether or not such Security is overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held on its behalf by a Depositary shall have any rights under this Indenture with
respect to such Global Security, and such Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the owner of such Global Security for all purposes whatsoever. None of the Company, the Trustee nor any
agent of the Company or the Trustee will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
Section 3.09 |
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 canceled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any
Securities previously authenticated hereunder which the Company has not issued and sold, in each case accompanied by a Company Order, and all Securities so delivered shall be promptly canceled by the Trustee. No Securities shall be authenticated in
lieu of or in exchange for any Securities canceled as provided in this Section, except as expressly permitted by this Indenture. All canceled Securities held by the Trustee shall be disposed of in accordance with its customary procedures, and the
Trustee shall thereafter, from time to time upon written request, deliver to the Company a certificate with respect to such disposition.
Section 3.10 |
Computation of Interest |
Except as otherwise specified as contemplated by
Section 3.01 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months and
interest on the Securities of each series for any partial period shall be computed on the basis of a 360-day year of twelve 30-day months and the number of days elapsed
in any partial month.
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Section 3.11 |
CUSIP Numbers |
The Company in issuing the Securities may use CUSIP numbers
(in addition to the other identification numbers printed on the Securities), and, if so, the Trustee shall use CUSIP numbers in notices of redemption as a convenience to Holders; provided, however, that any such notice may state that no
representation is made as to the correctness of such CUSIP 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 CUSIP numbers. The Company will promptly notify the Trustee in writing of any change in the CUSIP numbers.
ARTICLE IV
SATISFACTION
AND DISCHARGE
Section 4.01 |
Satisfaction and Discharge of Indenture |
This Indenture shall upon Company Request cease
to be of further effect with respect to Securities of any series (except as to any surviving rights of registration of transfer or exchange of such Securities herein expressly provided for), and the Trustee, at the expense of the Company, shall
execute such instruments reasonably requested by the Company acknowledging satisfaction and discharge of this Indenture with respect to such Securities, when
(1) either
(A)
all such Securities theretofore authenticated and delivered (other than (i) such Securities which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.06, and (ii) such Securities for whose
payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 10.03) have been delivered to the Trustee for
cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for cancellation
(i) have become due and payable,
(ii) will become due and payable at their Stated Maturity within one year, or
(iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of the Company,
and the Company in the case of (i), (ii) or
(iii) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for this purpose an amount of money in the currency or currency units in which such Securities are payable sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal and any premium and interest to the date of such deposit (in the case of Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable hereunder by
the Company with respect to such Securities; and
(3) the Company has delivered to the Trustee an Officers Certificate and an
Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture with respect to such Securities have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with respect to Securities of any series, (i) the obligations of the
Company to the Trustee under Section 6.07, the obligations of the Trustee to any Authenticating Agent under Section 6.14 and the right of the Trustee to resign under Section 6.10 shall survive, and
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(ii) if money shall have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of this Section, the obligations of the Company and/or the Trustee under
Section 4.02, Section 6.06, Section 7.01 and Section 10.02 and the last paragraph of Section 10.03 shall survive.
Section 4.02 |
Application of Trust Money |
Subject to the provisions of the last paragraph of
Section 10.03, all money deposited with the Trustee pursuant to Section 4.01 shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal and any premium and interest for whose payment such money has been deposited with the Trustee.
ARTICLE V
REMEDIES
Section 5.01 |
Events of Default |
Event of Default, wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any
Security of that series when it becomes due and payable, and continuance of such default for a period of 30 days (whether or not such payment is prohibited by the provisions of Article XIV hereof); or
(2) default in the payment of the principal of (or premium, if any, on) any Security of that series at its Maturity (whether or not such
payment is prohibited by the provisions of Article XIV hereof); or
(3) default in the performance, or breach, of any term, covenant or
warranty of the Company in this Indenture (other than a term, covenant or warranty a default in whose performance or whose breach is elsewhere in this Section specifically dealt with or 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 90 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the
Trustee by 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; or
(4) the Company pursuant to or within the meaning of any Bankruptcy Law (A) commences a voluntary case,
(B) consents to the entry of any order for relief against it in an involuntary case, (C) consents to the appointment of a Custodian of it or for all or substantially all of its property, or (D) makes a general assignment for the
benefit of its creditors; or
(5) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (A) is
for relief against the Company in an involuntary case, (B) appoints a Custodian of the Company or for all or substantially all of its property, or (C) orders the liquidation of the Company; and the order or decree remains unstayed and in
effect for 90 days; or
(6) any other Event of Default provided as contemplated by Section 3.01 with respect to Securities of that
series.
Section 5.02 |
Acceleration of Maturity; Rescission and Annulment |
If an Event of Default with respect
to Securities of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee or Holders of not less than 25% in principal amount of the
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Outstanding Securities of that series may declare the principal amount of (or, if any of the Securities of that series are Original Issue Discount Securities, such portion of the principal amount
of such Securities as may be specified in the terms thereof) all of the Securities of that series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such
principal amount (or specified amount) shall become immediately due and payable. If an Event of Default under Section 5.01(4) or Section 5.01(5) occurs and is continuing then the principal amount of all of the Securities shall be due and
payable immediately.
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, Holders of a majority in principal amount of the Outstanding Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of that series,
(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 any 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 and reasonable expenses, disbursements and advances
of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that series, other than the
non-payment of the principal of Securities of that series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent Default or impair any right consequent thereon.
When any Default has occurred and is continuing under this Indenture, the Company shall, within five (5) Business Days after
becoming aware of such Default, deliver to the Trustee an Officers Certificate specifying such Default, its status and what actions the Company is taking or proposed to take with respect thereto.
Section 5.03 |
Collection of Indebtedness and Suits for Enforcement by Trustee |
The Company covenants
that if
(1) default is made in the payment of any interest on any Security when such interest becomes due and payable and such default
continues for a period of 30 days (whether or not such payment is prohibited by the provisions of Article XIV hereof), or
(2) default is
made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof (whether or not such payment is prohibited by the provisions of Article XIV hereof),
the Company will pay to the Trustee, for the benefit of Holders of such Securities, the whole amount then due and payable on such Securities for principal 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 compensation and reasonable expenses, disbursements and advances of the Trustee, its agents and counsel.
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If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name
and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company, or any other obligor
upon such Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company, or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee, provided the Trustee has knowledge of
such Event of Default, may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 5.04 |
Trustee May File Proofs of Claim |
In case of any judicial proceeding relative to the
Company, or any other obligor upon the Securities, their property or their 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 Holders and the Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized 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 Holders, to pay to the Trustee any amount due it for the compensation and reasonable expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 6.07.
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 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 5.05 |
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 compensation and reasonable expenses, disbursements and advances of the Trustee, its agents and
counsel, be for the ratable benefit of Holders of the Securities in respect of which such judgment has been recovered.
Section 5.06 |
Application of Money Collected |
Any money or property collected or to be applied 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 interest, upon presentation of
the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the
payment of all amounts due the Trustee under Section 6.07;
SECOND: Subject to Article XIV, 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 Company.
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Section 5.07 |
Limitation on Suits |
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture or a Security, 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) 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 and, if requested, provided to the Trustee reasonable security or indemnity 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 and, if requested, provision of security or indemnity has
failed to institute any such proceeding; and
(5) no written direction inconsistent with such written request has been given to the
Trustee during such 60-day period by 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.
Section 5.08 |
Unconditional Right of Holders to Receive Principal, Premium and Interest |
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Section 3.05 and Section 3.07) interest on such Security on the respective Stated Maturity 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 5.09 |
Restoration of Rights and Remedies |
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then in every such case, subject to any
determination in such proceeding, the Company, the Trustee and Holders shall be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Trustee and Holders shall continue as though no
such proceeding had been instituted.
Section 5.10 |
Rights and Remedies Cumulative |
Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 3.06, no right or remedy herein conferred upon or reserved to the Trustee or to 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.
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Section 5.11 |
Delay or Omission Not Waiver |
No delay or omission of the Trustee or of any Holder of
any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or
by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 5.12 |
Control by Holders |
Subject to the provisions of Section 6.03, Holders of a
majority in aggregate principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, with respect to the Securities of such series; provided, however, 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) the Trustee shall have the right to decline to follow any such direction if the Trustee in good
faith shall determine that the proceeding so directed would involve the Trustee in personal liability or would otherwise be contrary to applicable law.
Section 5.13 |
Waiver of Past Defaults |
Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series may on behalf of Holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except
(1) a continuing default in the payment of the principal of or any premium or interest on any Security of such series, or
(2) a default in respect of a covenant or provision hereof which under Article IX cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture, but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 5.14 |
Undertaking for Costs |
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, however, 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, in any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities of any series to which the suit relates, or in any
suit instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any) or interest on any Security on or after the respective Stated Maturity expressed by such Security (or, in the case of redemption or repayment,
on or after the Redemption Date).
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ARTICLE VI
THE TRUSTEE
Section 6.01 |
Certain Duties and Responsibilities |
(a) Except during the continuance of an Event of
Default with respect to any series of Securities,
(1) the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture with respect to the Securities of such series, and no implied covenants or obligations shall read into this Indenture against the Trustee (it being agreed that the permissive right of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty); and
(2) in the absence of bad faith on its part, the Trustee may, with
respect to Securities of such series, 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 conforming on their face 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 only whether or not they
conform on their face to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts, statements, opinions or conclusions stated therein).
(b) In case an Event of Default with respect to any series of Securities has occurred and is continuing, the Trustee shall exercise with
respect to the Securities of such series such 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 such
persons own affairs.
(c) No provisions 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
(1) this Subsection shall not be construed
to limit the effect of Subsection (a) of this Section;
(2) 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;
(3) 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 or a majority in principal amount of the Outstanding Securities of any series relating to the
time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such series; and
(4) 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 adequate indemnity against such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of
or affording protection to the Trustee shall be subject to the provisions of this Section.
Section 6.02 |
Notice of Defaults |
If a Default occurs and is continuing with respect to the Securities
of any series, the Trustee shall, within 90 days after it occurs and is actually known to an officer of the Trustee responsible for this Indenture, transmit, in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act,
notice of all uncured or unwaived Defaults known to it; provided, however, that, except in the case of a Default in payment on the Securities of any series, the Trustee shall be protected in withholding the notice if and so long as a committee of
Responsible Officers of the Trustee determines in good faith that withholding such notice is in the interests of Holders of Securities of such series.
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For all purposes of this Indenture (including, without limitation, Section 6.01) and the
securities, the Trustee shall not be deemed to have notice or be charged with knowledge of any Default, except a Default under Section 5.01(1) or Section 5.01(2) herein (provided that, the Trustee is also the Paying Agent), unless the
Trustee shall have received from the Company or from any Holder written notice thereof at its Corporate Trust Office, and such notice references the Securities and this Indenture. In the absence of any such notice, the Trustee may conclusively
assume that no such Default exists.
Section 6.03 |
Certain Rights of Trustee |
Subject to the provisions of Section 6.01:
(1) the Trustee may rely on 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, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a Company Request
or Company Order (or in the case of a Periodic Offering, as agreed in procedures set forth in a Company Order pursuant to Section 3.03) and any resolution of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
(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, rely upon an Officers Certificate;
(4) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee
shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or
indemnity satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may, without obligation to do so, make such further
inquiry or investigation into such facts or matters as it may see fit; and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or
by agent or attorney;
(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 may request that the Company deliver an Officers Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this Indenture, which Officers Certificate may be signed by any Person authorized to sign an Officers Certificate, including any Person specified as so authorized in
any such certificate previously delivered and not superseded;
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(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; and
(10) In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind
whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
Section 6.04 |
Not Responsible for Recitals or Issuance of Securities |
The recitals contained herein
and in the Securities, except the Trustees certificates of authentication, shall be taken as the statements of the Company, and the Trustee or any Authenticating Agent assumes no responsibility for their correctness. Neither the Trustee nor
any Authenticating Agent makes any 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 Company of
Securities or the proceeds thereof.
Section 6.05 |
May Hold Securities |
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Section 6.08 and Section 6.13, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 6.06 |
Money Held in Trust |
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder.
Section 6.07 |
Compensation and Reimbursement |
The Company agrees:
(1) to pay to the Trustee from time to time such compensation for all services rendered by it hereunder as shall be mutually agreed upon by
the Company and the Trustee in writing (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(2) 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 its gross negligence or
willful misconduct; and
(3) to indemnify the Trustee, its officers, directors, employees and agents for, and to hold each of them
harmless against, any loss, liability or expense incurred without gross negligence or willful misconduct on any of their parts, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the
costs and expenses of enforcing this Indenture against the Company (including this Section 6.07) and defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder.
The obligations of the Company under this Section to compensate the Trustee and to pay or reimburse the Trustee for expenses, disbursements
and advances shall constitute additional indebtedness hereunder.
Without limiting any rights available to the Trustee under applicable
law, when the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 5.01(4) or Section 5.01(5), the expenses (including the reasonable charges and expenses of its counsel) and the
compensation for such services are intended to constitute expenses of administration under any applicable Bankruptcy Law.
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To secure the Companys payment obligations in this Section 6.07, the Trustee is hereby
granted a lien prior to the Securities against all money or property held or collected by the Trustee, in its capacity as Trustee.
The
provisions of this Section shall survive the satisfaction and discharge of this Indenture and the defeasance of the Securities and the resignation or removal of the Trustee.
Section 6.08 |
Disqualification; Conflicting Interests |
If the Trustee 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.
Section 6.09 |
Corporate Trustee Required; Eligibility |
There shall at all times be one or more
Trustees hereunder with respect to the Securities of each series, at least one of which shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus required by the Trust Indenture Act.
If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of a supervising or examining authority, then for the purposes of this Section, 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 shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the
manner and with the effect hereinafter specified in this Article.
Section 6.10 |
Resignation and Removal; Appointment of Successor |
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 6.11.
The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company. If
the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may, at the expense of the Company,
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 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 Company. If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of such notice of removal, the
removed Trustee may, at the expense of the Company, petition 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 6.08 after written request therefor by the Company 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 6.09 and shall fail to resign after written request therefor by the Company 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
Company, acting pursuant to the authority of a Board Resolution, may remove the Trustee with respect to all Securities, or (B) subject to Section 5.14, 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.
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If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall
occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company, by 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 6.11. 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 Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment
in accordance with the applicable requirements of Section 6.11, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with
respect to the Securities of any series shall have been so appointed by the Company or Holders and accepted appointment in the manner required by Section 6.11, 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 Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series to all Holders of Securities of such series in the manner provided in Section 1.06. 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 6.11 |
Acceptance of Appointment by Successor |
(1) In case of the appointment hereunder of a
successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges and all amounts due to it under Section 6.07, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts
of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
(2) In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which
(A) 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, (B) 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 (C) 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 as co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution
and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, but, on request of the Company, or any successor Trustee, such
retiring Trustee shall, upon payment of its charges and all amounts due to it under Section 6.07, 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.
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(3) Upon request of any such successor Trustee, the Company shall execute any and all instruments
for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (1) or (2) of this Section, as the case may be.
(4) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
Section 6.12 |
Merger, Conversion, Consolidation or Succession to Business |
Any corporation into which
the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all
the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
Section 6.13 |
Preferential Collection of Claims Against the Company |
If and when the Trustee shall be
or become a creditor of the Company, 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 Company or any such other obligor.
Section 6.14 |
Appointment of Authenticating Agent |
The Trustee (upon notice to the Company) may
appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon original issue (in accordance with procedures
acceptable to the Trustee) and upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 3.06, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustees certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company.
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 such Authenticating Agent, shall continue to be an Authenticating Agent.
An Authenticating Agent may resign at any time by
giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be
acceptable to the Company.
Except with respect to an Authenticating Agent appointed at the request of the Company, the Company agrees to
pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section.
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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 Trustees 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.
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Wilmington Trust, National Association, as Trustee |
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Date: |
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By: |
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As Authenticating Agent |
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By: |
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Authorized Signatory |
ARTICLE VII
HOLDERS LISTS AND REPORTS BY TRUSTEE AND THE COMPANY
Section 7.01 |
The Company to Furnish Trustee Names and Addresses of Holders |
The Company will furnish
or cause to be furnished to the Trustee
(1) not later than five (5) Business Days before each Interest Payment Date, a list for each
series of Securities, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Securities of such series as of the preceding Regular Record Date, and
(2) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time such list is furnished;
provided, however, that if and so long as the
Trustee shall be the Security Registrar for Securities of a series, no such list need be furnished with respect to such series of Securities.
Section 7.02 |
Preservation of Information; Communications to Holders |
The Trustee shall comply with
the obligations imposed upon it pursuant to Section 312 of the Trust Indenture Act.
The rights of the 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 Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of any disclosure of information as to the names and addresses of Holders made pursuant to the Trust Indenture Act.
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Section 7.03 |
Reports by Trustee |
As promptly as practicable after each
[ ] beginning with the
[ ] following the later of the date of this Indenture and the date of initial issuance of Securities hereunder, the Trustee shall
send to each Holder a brief report dated as of [ ] that complies with Trust Indenture Act Section 313(a). The Trustee also
shall comply with Trust Indenture Act Section 313(b). Prior to delivery to the Holders, the Trustee shall deliver to the Company a copy of any report it delivers to Holders pursuant to this Section 7.03; provided, however, that no recourse
may be taken against the Trustee for its failure to deliver a copy of such report to the Company prior to its delivery of the report to the Holders.
A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company will notify the Trustee in writing when any Securities are listed on any stock exchange.
Section 7.04 |
Reports by the Company |
The Company shall file with the Commission (and send a copy to
the Trustee), and transmit to Holders, such information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to the Trust Indenture Act;
provided that with respect to any such information, documents and reports filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval (or EDGAR) system, the Company shall notify the Trustee in the manner prescribed
herein of each such filing. The Trustee is hereby authorized and directed to access the EDGAR system for purposes of retrieving the financial information so filed. The Trustee shall have no duty to search for or obtain any electronic or other
filings that the Company makes with the Commission, regardless of whether such filings are periodic, supplemental or otherwise. Delivery of reports, information and documents to the Trustee pursuant to this Section 7.04 shall be solely for
purposes of compliance with this Section 7.04 and, if applicable, with Section 314(a) of the Trust Indenture Act, but shall not relieve the Company of the requirement to deliver the Officers Certificates referred to below.
The Trustees receipt of such reports, information and documents is for informational purposes only and the Trustees receipt of such shall not constitute actual or constructive knowledge or notice to it of the content thereof or any
matter determinable from the contents thereof, including the Companys compliance with any of its covenants hereunder, as to which the Trustee is entitled to rely upon Officers Certificates. The Trustee will have no responsibility
whatsoever to monitor whether such filing or posting has occurred or the timeliness of such filing or posting.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.01 |
The Company May Consolidate, Etc., Only on Certain Terms |
The Company shall not
consolidate with or merge into any other Person or convey, transfer or lease its properties and assets substantially as an entirety to, any Person, unless:
(1) the Person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer, or
which leases, the properties and assets of the Company substantially as an entirety shall be a corporation, partnership 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 other covenant of this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving
effect to such transaction and treating any indebtedness which becomes an obligation of the Company or a Subsidiary as a result of such transaction as having been incurred by the Company 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;
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(3) if, as a result of any such consolidation or merger or such conveyance, transfer or lease,
properties or assets of the Company would become subject to a mortgage, pledge, lien, security interest or other encumbrance which would not be permitted by this Indenture, the Company or such successor Person, as the case may be, shall take such
steps as shall be necessary effectively to secure the Securities equally and ratably with (or prior to) all indebtedness secured thereby; and
(4) the Company 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.
Section 8.02 |
Successor Substituted |
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any conveyance, transfer or lease of the properties and assets of the Company substantially as an entirety in accordance with Section 8.01, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been
named as the Company herein and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities and coupons and may liquidate and dissolve.
ARTICLE IX
SUPPLEMENTAL
INDENTURES
Section 9.01 |
Supplemental Indentures without Consent of Holders |
Without the consent of any Holders
of Securities, the Company and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, for any of the following purposes:
(1) to evidence the succession of another Person to the Company under this Indenture and the Securities and the assumption by such successor
Person of the obligations of the Company hereunder;
(2) to add covenants and Events of Default for the benefit of the Holders of all or
any series of such Securities or to surrender any right or power conferred by this Indenture upon the Company or to make any change that does not adversely affect the legal rights hereunder of any Holder in any material respect;
(3) to add to, change or eliminate any of the provisions of this Indenture, provided that any such addition, change or elimination shall
become effective only after there are no such Securities of any series entitled to the benefit of such provision outstanding;
(4) to
establish the forms or terms of the Securities of any series issued hereunder;
(5) to cure any ambiguity or correct any defect or
inconsistency in this Indenture;
(6) to evidence the acceptance of appointment by a successor Trustee with respect to one or more series
of Securities or otherwise;
(7) to qualify this Indenture under the Trust Indenture Act;
(8) to provide for uncertificated securities in addition to certificated securities;
(9) to supplement any provisions of this Indenture necessary to permit or facilitate the defeasance and discharge of any series of Securities,
provided that such action does not adversely affect the interests of the Holders of Securities of such series or any other series; and
(10) to comply with the rules or regulations of any securities exchange or automated quotation system on which any of the Securities may be
listed or traded.
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Section 9.02 |
Supplemental Indentures with Consent of Holders |
With the consent of the Holders of not
less than a majority in aggregate principal amount of all Outstanding Securities affected by such supplemental indenture (voting as one class) (including any consents obtained in connection with a tender offer of the Securities), the Company 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 modifying in any manner the rights of Holders of
Securities of such series under this Indenture; provided that the Company and the Trustee may not, 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, if any, on, any Security, or reduce the
principal amount thereof or premium, if any, on or the rate of interest thereon or adversely affect any right to convert or exchange any Security into any other security, or alter the method of computation of interest;
(2) reduce the percentage in principal amount of Securities required for any such supplemental indenture or for any waiver provided for in
this Indenture;
(3) change the Companys obligation to maintain an office or agency for payment of Securities and the other matters
specified herein;
(4) impair the right to institute suit for the enforcement of any payment of principal of, premium, if any, or interest
on, any Security;
(5) modify the provisions of this Indenture with respect to the subordination of any Security in a manner adverse to
the Holder thereof; or
(6) modify any of the provisions of this Indenture relating to the execution of supplemental indentures with the
consent of Holders of Securities which are discussed in this Section or modify any provisions relating to the waiver by Holders of Securities of past defaults and covenants, except to increase any required percentage or to provide that other
provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby.
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 9.03 |
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 6.01) 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. The Trustee shall enter into any supplemental indenture which does not adversely
affect the Trustees own rights, duties, liabilities or immunities under this Indenture or otherwise. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which adversely affects the Trustees own
rights, duties, liabilities or immunities under this Indenture or otherwise.
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Section 9.04 |
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 9.05 |
Conformity with Trust Indenture Act |
Every supplemental indenture executed pursuant to
this Article shall conform to the requirements of the Trust Indenture Act as then in effect.
Section 9.06 |
Reference in Securities to Supplemental Indentures |
Securities of any series
authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, bear a notation as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series
so modified as to conform, in the opinion of the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series. Failure to
make a notation or issue a new Security shall not affect the validity and effect of any amendment, supplement or waiver.
ARTICLE X
COVENANTS
Section 10.01 |
Payment of Principal, Premium (if any) and Interest |
The Company 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. An installment of
principal or interest shall be considered paid on the date due if on such date the Trustee or the Paying Agent holds as of 10:30 a.m., New York City time, money sufficient to pay all principal and interest then due and the Trustee or the Paying
Agent, as the case may be, is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture.
Section 10.02 |
Maintenance of Office or Agency |
The Company will maintain in each Place of Payment for
any series of Securities an office or agency where Securities of 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 Company in respect of the Securities of that series and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency 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 or shall fail
to furnish the Trustee with the address thereof, such presentations and surrenders may be made at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations and surrenders.
The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or
agency in each Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency;
provided however, that no service of legal process on the Company may be made at any office of the Trustee.
Except as otherwise specified
with respect to a series of Securities as contemplated by Section 3.01, the Company hereby initially designates as the Place of Payment for each series of Securities to be the Corporate Trust Office of the Trustee, and initially appoints the
Trustee as Paying Agent at its office at 1100 North Market Street, Wilmington, Delaware 19890, as the Companys office or agency for each such purpose in such city.
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Section 10.03 |
Money for Securities Payments to Be Held in Trust |
If the Company or any of its
Subsidiaries shall at any time act as 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 Company shall have one or more Paying Agents for any series of
Securities, it will, on or prior to each due date of the principal of 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 Company will promptly notify the Trustee in writing of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will (1) hold all sums held by it for the payment of the principal of (and premium, if any) or interest, if
any, on Securities of that series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided; (2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of any payment of principal (and premium, if any) or interest, if any, on the Securities of that series; and (3) during the continuance of any such default, 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. If an Event of Default occurs and is continuing under Section 5.01(4) or
Section 5.01(5), the Trustee shall automatically be the Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent 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 state which escheat laws control and the Trustee or any Paying Agent shall be discharged from such
trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the state which escheat laws control for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such payment, may at the expense of the Company cause to be published once, in an
Authorized Newspaper, 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 paid to the
state whose escheat laws control.
Section 10.04 |
Statement by Officers as to Default |
The Company will deliver to the Trustee, within 120
days after the end of each Fiscal Year of the Company ending after the date hereof, an Officers Certificate, stating whether or not to the best knowledge of the signer or signers thereof the Company is in default in the performance and
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 Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
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Section 10.05 |
Waiver of Certain Covenants |
The Company may omit in any particular instance to comply
with any term, provision or condition set forth in Section 10.02 through Section 10.03 with respect to the Securities of any series if before the time for such compliance Holders of at least a majority in aggregate principal amount of the
Outstanding Securities of all affected series (voting as one class) shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to
or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition
shall remain in full force and effect.
A waiver which changes or eliminates any term, provision or condition 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 term, provision or condition, shall be deemed not to affect
the rights under this Indenture of the Holders of Securities of any other series.
ARTICLE XI
REDEMPTION OF SECURITIES
Section 11.01 |
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 3.01 for Securities of any series) in accordance with this Article.
Section 11.02 |
Election to Redeem; Notice to Trustee |
The election of the Company to redeem any
Securities shall be evidenced by a Board Resolution. In case of any redemption at the election of the Company of less than all the Securities of any series, the Company shall, not less than 35 nor more than 60 days prior to the Redemption Date fixed
by the Company (unless a shorter notice shall be satisfactory to the Trustee and provided, notice may be given more than 60 days prior to a redemption date if the notice is issued in connection with Article IV or Article XIII), notify the Trustee of
such Redemption Date, of the principal amount of Securities of such series to be redeemed. In the case of any redemption of Securities (1) prior to the expiration of any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, or (2) pursuant to an election of the Company which is subject to a condition specified in the terms of such Securities, the Company shall furnish the Trustee with an Officers Certificate evidencing compliance
with such restriction or condition.
Section 11.03 |
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 35 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities of such series not previously called for redemption, on a pro rata basis, by lot or by any other method which the Trustee deems fair and appropriate and which complies with any securities exchange or other applicable
requirements of any Depositary for redemption of portions (equal to the minimum authorized denomination for Securities of that series or any integral multiple thereof) of the principal amount of Securities of such series of a denomination larger
than the minimum authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption.
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.
45
Section 11.04 |
Notice of Redemption |
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, at his address appearing in the Security Register, or otherwise in accordance with the applicable procedures of the
Depositary; provided, notice may be given more than 60 days prior to a redemption date if the notice is issued in connection with Article IV or Article XIII.
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 and of a specified tenor are to be redeemed, the
identification (and, in the case of partial redemption of any Securities, the principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and that interest
thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be surrendered for payment of
the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed shall be given by the Company or, at the Companys request made in the form of an
Officers Certificate (made to the Trustee at least 5 days (or such shorter period as shall be satisfactory to the Trustee) prior to the mailing of such notice), by the Trustee in the name and at the expense of the Company. Any such request
will set forth the information to be stated in such notice, as provided by this Section 11.04.
Section 11.05 |
Deposit of Redemption Price |
On or prior to 10:30 a.m. (Eastern time) on any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.03) an amount of money sufficient to pay the Redemption Price
of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities which are to be redeemed on that date.
Section 11.06 |
Securities Payable on Redemption Date |
Notice of redemption having been given as
aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued interest to
the Redemption Date; provided, however, that, unless otherwise specified as contemplated by Section 3.01, installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 3.07.
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.
46
Section 11.07 |
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 Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series 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 XII
SINKING
FUNDS
Section 12.01 |
Applicability of Article |
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 3.01 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a
mandatory sinking fund payment, and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an optional sinking fund payment. If provided for by the terms of
Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 12.02. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
Section 12.02 |
Satisfaction of Sinking Fund Payments with Securities |
The Company (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 Company 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 the Securities of such series required to be
made pursuant to the terms of such Securities as provided for by the terms of such series; provided that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 12.03 |
Redemption of Securities for Sinking Fund |
Not less than 45 days prior to each sinking
fund payment date for any series of Securities (unless a shorter period shall be satisfactory to the Trustee), the Company will deliver to the Trustee an Officers Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities of that series pursuant to
Section 12.02 and stating the basis for such credit and that such Securities have not been previously so credited, and will also deliver to the Trustee any Securities to be so delivered. Not less than 30 days before each such sinking fund
payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 11.03 and cause notice of the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 11.04. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Section 11.05 and Section 11.07.
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ARTICLE XIII
DEFEASANCE
Section 13.01 |
Applicability of Article |
The provisions of this Article shall be applicable to each
series of Securities except as otherwise specified as contemplated by Section 3.01 for Securities of such series.
Section 13.02 |
Legal Defeasance |
In addition to discharge of the Indenture pursuant to
Section 4.01, the Company shall be deemed to have paid and discharged the entire indebtedness on all the Securities of such a series on the 91st day after the date of the deposit referred to in Clause (1) below, and the provisions of this
Indenture with respect to the Securities of such series shall no longer be in effect (except as to (i) rights of registration of transfer and exchange of Securities of such series and the Companys right of optional redemption, if any,
(ii) substitution of mutilated, destroyed, lost or stolen Securities, (iii) rights of Holders of Securities to receive payments of principal thereof and interest thereon, upon the original stated due dates therefor or on the specified
redemption dates therefor (but not upon acceleration), and remaining rights of the holders to receive mandatory sinking fund payments, if any, (iv) the rights, obligations, duties and immunities of the Trustee hereunder, and the Companys
obligations in connection therewith (including, but not limited to, Section 6.07), (v) the rights, if any, to convert or exchange the Securities of such series, (vi) the rights of Holders of Securities of such series as beneficiaries
hereof with respect to the property so deposited with the Trustee payable to all or any of them, and (vii) the obligations of the Company under Section 10.02), and the Trustee, at the expense of the Company, shall, upon a Company Request,
execute proper instruments acknowledging the same, if the conditions set forth below are satisfied (hereinafter, defeasance):
(1) The Company has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust, for the purposes of making the
following payments, specifically pledged as security for, and dedicated solely to, the benefit of Holders of the Securities of such series (A) cash in an amount, or (B) in the case of any series of Securities the payments on which may only
be made in legal coin or currency of the United States, U.S. Government Obligations, maturing as to principal and interest at such times and in such amounts as will insure the availability of cash, or (C) a combination thereof, certified to be
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 (i) the principal and interest and premium, if any, on all Securities of
such series on each date that such principal, interest or premium, if any, is due and payable or on any Redemption Date established pursuant to Clause (3) below, and (ii) any mandatory sinking fund payments on the dates on which such
payments are due and payable in accordance with the terms of the Indenture and the Securities of such series;
(2) The Company has
delivered to the Trustee an Opinion of Counsel based on the fact that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (B) since the date hereof, there has been a change in the
applicable federal income tax law, in either case to the effect that, and such opinion shall confirm that, Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to federal income tax on the same amount and in the same manner and at the same times, as would have been the case if such deposit, defeasance and discharge had not occurred;
(3) If the Securities are to be redeemed prior to Stated Maturity (other than from mandatory sinking fund payments or analogous payments),
notice of such redemption shall have been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee shall have been made;
(4) No Event of Default or event which with notice or lapse of time or both would become an Event of Default shall have occurred and be
continuing on the date of such deposit;
(5) Such 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);
48
(6) Such defeasance shall not result in a breach or violation of, or constitute a default under,
any other agreement or instrument to which the Company is a party or by which it is bound;
(7) Such defeasance shall not result in the
trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act of 1940, as amended, unless such trust shall be registered under such Act or exempt from registration thereunder; and
(8) The Company has delivered to the Trustee an Officers Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this provision have been complied with.
For this purpose, such
defeasance means that the Company and any other obligor upon the Securities of such series shall be deemed to have paid and discharged the entire debt represented by the Securities of such series, which shall thereafter be deemed to be
Outstanding only for the purposes of Section 13.04 and the rights and obligations referred to in Clauses (i) through (vii), inclusive, of the first paragraph of this Section, and to have satisfied all its other obligations
under the Securities of such series and this Indenture insofar as the Securities of such series are concerned.
Section 13.03 |
Covenant Defeasance |
The Company and any other obligor shall be released on the 91st day after the date of the deposit referred to in Clause (1) below from its obligations under Section 7.04 and Section 8.01 with respect to the Securities of any series on and after
the date the conditions set forth below are satisfied (hereinafter, covenant defeasance), and the Securities of such series shall thereafter be deemed to be not Outstanding for the purposes of any request, demand,
authorization, direction, notice, waiver, consent or declaration or other action or Act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed Outstanding for all other purposes hereunder.
For this purpose, such covenant defeasance means that, with respect to the Securities of such series, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such Section,
whether directly or indirectly by reason of any reference elsewhere herein to such Section or by reason of any reference in such Section to any other provision herein or in any other document and such omission to comply shall not constitute a
Default or an Event of Default under Section 5.01, but, except as specified above, the remainder of this Indenture and the Securities of such series shall be unaffected thereby. The following shall be the conditions to application of this
Section 13.03:
(1) The Company has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for the
purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of Holders of the Securities of such series, (A) cash in an amount, or (B) in the case of any series of Securities the
payments on which may only be made in legal coin or currency of the United States, U.S. Government Obligations, maturing as to principal and interest at such times and in such amounts as will insure the availability of cash, or (C) a
combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay (i) the principal and interest and premium, if any,
on all Securities of such series on each date that such principal, interest or premium, if any, is due and payable or on any Redemption Date established pursuant to Clause (2) below, and (ii) any mandatory sinking fund payments on the day
on which such payments are due and payable in accordance with the terms of the Indenture and the Securities of such series;
(2) If the
Securities are to be redeemed prior to Stated Maturity (other than from mandatory sinking fund payments or analogous payments), notice of such redemption shall have been duly given pursuant to this Indenture or provision therefor satisfactory to the
Trustee shall have been made;
(3) No Event of Default or event which with notice or lapse of time or both would become an Event of
Default shall have occurred and be continuing on the date of such deposit;
(4) The Company has delivered to the Trustee an Opinion of
Counsel which shall confirm that Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a
49
result of such deposit and covenant defeasance and will be subject to federal income tax on the same amount and in the same manner and at the same time as would have been the case if such deposit
and covenant defeasance had not occurred;
(5) Such 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);
(6) Such covenant
defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Company is a party or by which it is bound;
(7) Such covenant defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of
the Investment Company Act of 1940, as amended, unless such trust shall be registered under such Act or exempt from registration thereunder; and
(8) The Company has delivered to the Trustee an Officers Certificate and Opinion of Counsel stating that all conditions precedent
provided for relating to the covenant defeasance contemplated by this provision have been complied with.
Section 13.04 |
Application by Trustee of Funds Deposited for Payment of Securities |
Subject to the
provisions of the last paragraph of Section 10.03, all moneys or U.S. Government Obligations deposited with the Trustee pursuant to Section 13.02 or Section 13.03 (and all funds earned on such moneys or U.S. Government Obligations)
shall be held in trust and applied by it to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent), to Holders of the particular Securities of such series for the payment or redemption of
which such moneys have been deposited with the Trustee, of all sums due and to become due thereon for principal and interest; but such money need not be segregated from other funds except to the extent required by law. Subject to Section 13.02
and Section 13.03, the Trustee shall promptly pay to the Company upon Company Order any moneys held by it at any time, which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification
delivered to the Trustee, are in excess of the amounts required to effect the defeasance with respect to the Outstanding Securities in question.
Section 13.05 |
Repayment to the Company |
Subject to applicable abandoned property law, the Trustee and
any Paying Agent promptly shall pay or return to the Company upon Company Request any money and U.S. Government Obligations held by them at any time that are not required for the payment of the principal of and any interest on the Securities of any
series for which money or U.S. Government Obligations have been deposited pursuant to Section 13.02 or Section 13.03, which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written
certification delivered to the Trustee, are in excess of the amounts required to effect the defeasance with respect to the Outstanding Securities in question.
The provisions of the last paragraph of Section 10.03 shall apply to any money held by the Trustee or any Paying Agent under this Article
that remains unclaimed for two years after the Maturity of any series of Securities for which money or U.S. Government Obligations have been deposited pursuant to Section 13.02 or Section 13.03.
Section 13.06 |
Reinstatement |
If the Trustee or the Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with this Article 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 obligations
of the Company under this Indenture and the Securities of the applicable series shall be revived and reinstated as though no deposit had occurred pursuant to this Indenture until such time as the Trustee or the Paying Agent is permitted to apply all
such money or U.S. Government Obligations in accordance with this Article; provided, however, that if the Company has made any payment of principal of or interest on any Securities of such series because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of Holders of such Securities to receive such payment from the money or U.S. Government Obligations held by the Trustee or the Paying Agent
50
ARTICLE XIV
SUBORDINATION OF SECURITIES
Section 14.01 |
Securities Subordinated to Senior Debt |
The payment by the Company of the principal of,
premium, if any, and interest, if any, on any series of Securities issued hereunder shall be subordinated to the extent set forth in an indenture supplemental hereto relating to such Securities. Notwithstanding anything herein to the contrary, the
provisions of this Article XIV shall not apply to any amounts due to the Trustee under Section 6.07.
[Remainder of Page Intentionally
Left Blank]
51
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed in
multiple counterparts, each of which so executed shall be deemed to be an original, but all of which shall together constitute but one and the same instrument, all as of the day and year first above written.
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FINANCIAL INSTITUTIONS, INC. |
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By: |
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Name: |
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Title: |
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WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee |
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By: |
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Name: |
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Title: |
Exhibit 5.1
March 16, 2015
Financial Institutions, Inc.
220 Liberty Street
Warsaw, New York 14569
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Re: |
Registration Statement on Form S-3 |
Ladies and Gentlemen:
We have acted as counsel to Financial Institutions, Inc., a New York corporation (the Company), in connection with
its filing of a Registration Statement on Form S-3 (the Registration Statement) with the Securities and Exchange Commission (the SEC) pursuant to the Securities Act of 1933, as amended (the
Securities Act) with respect to the registration and public offering by the Company, from time to time, pursuant to Rule 415 under the Securities Act, of up to $100,000,000 in the aggregate amount of any combination of the
following:
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(i) |
debt securities of the Company, whether senior or subordinated, (collectively, Debt Securities); |
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(ii) |
shares of common stock, $0.01 par value, of the Company (Common Stock); |
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(iii) |
shares of preferred stock, $100 par value, of the Company (Preferred Stock), which may be issued in the form of depositary shares (Depositary Shares);
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(iv) |
warrants to purchase Common Stock, Preferred Stock or Depositary Shares of the Company (Warrants); |
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(v) |
purchase contracts of the Company (Purchase Contracts), obligating the holders thereof to purchase from or sell to the Company, or the Company to sell to our purchase from the holders, the Debt
Securities, Common Stock, Preferred Stock, Depositary Shares or other securities at a future date or dates; and |
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(vi) |
units comprised of one or more of the securities described above in any combination (the Units). |
The Debt Securities, Common Stock, Preferred Stock, Depositary Shares, Warrants, Purchase Contracts and Units are collectively referred to
herein as the Securities.
As such counsel, and for purposes of our opinion set forth below, we have reviewed
such documents and made such examination of law as we have deemed appropriate to give the opinions set forth below. We have relied, without independent verification, on certificates of public officials and, as to matters of fact material to the
opinions set forth below, on certificates of officers of the Company.
For purposes of the opinions set forth below, without limiting any other exceptions or
qualifications set forth herein, we have assumed that after the issuance of any Securities offered pursuant to the Registration Statement, the total number of issued shares of Common Stock or Preferred Stock, as applicable, together with the total
number of shares of such stock issuable upon the exercise, exchange, conversion or settlement, as the case may be, of any exercisable, exchangeable or convertible security (including without limitation any Unit or Purchase Contracts), as the case
may be, then outstanding, will not exceed the total number of authorized shares of Common Stock or Preferred Stock, as applicable, under the Companys certificate of incorporation as then in effect (the Charter).
For purposes of the opinions set forth below, we refer to the following as the Future Authorization and Issuance of
Securities:
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with respect to any of the Securities, (a) the authorization by the Company of the amount, terms and issuance of such Securities (the Authorization) and (b) the issuance of such
Securities in accordance with the Authorization therefor upon receipt by the Company of the consideration (which, in the case of shares of Common Stock or Preferred Stock, is not less than the par value of such shares) to be paid therefor in
accordance with the Authorization and (c) any definitive purchase, underwriting or similar agreement with respect to any Securities offered will have been duly authorized and validly executed and delivered by the Company and the other party or
parties thereto and, if applicable, (d) certificates representing such Securities have been duly executed, countersigned, registered and delivered either (i) in accordance with the applicable definitive purchase, underwriting or similar
agreement or (ii) upon conversion or exercise of any other Security, in accordance with the terms of such Security or the instrument governing such Security providing for such conversion or exercise; |
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with respect to Preferred Stock, (a) the establishment of the terms of such Preferred Stock by the Company in conformity with the Charter and applicable law and (b) the execution, acknowledgement and filing
with the New York Department of State of a certificate of amendment to the Charter providing for the issuance of a series of Preferred Stock in accordance with the Charter and applicable law; |
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with respect to Debt Securities, (a) the qualification of the trustee to act as trustee under the indenture or a supplemental indenture relating to such Debt Security and (b) the authorization, execution and
delivery of the indenture or a supplemental indenture relating to such Debt Securities by the Company and the trustee thereunder and/or (c) the establishment of the terms of such Debt Securities by the Company in conformity with the applicable
indenture or supplemental indenture and applicable law, and (d) the execution, authentication and issuance of such Debt Securities in accordance with the applicable indenture or supplemental indenture and applicable law; |
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with respect to Warrants, Units or Purchase Contracts (a) the authorization, execution and delivery by the Company and the other parties thereto of any agreement under which such Securities are to be issued and
(b) the establishment of the terms of such Securities, and the execution and delivery of such Securities, in conformity with any applicable agreement under which such Securities are to be issued and applicable law and (c) any Securities
issuable upon conversion, exchange, redemption or exercise of such Warrants, Units or Purchase Contracts being offered will be duly authorized, created and, if appropriate, reserved for issuance upon such conversion, exchange, redemption, or
exercise; and |
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with respect to Depositary Shares, (a) the authorization, execution and delivery by the Company and the depositary of the depositary agreement under which such Depositary Shares are to be issued, (b) the
establishment of the terms of such Depositary Shares by the Company in conformity with the deposit agreement and applicable law, (c) the authorization, issuance and delivery to the Depositary of the shares of Preferred Stock represented by the
Depositary Shares in accordance with the Charter and applicable law, and (d) the execution, countersignature and issuance of depositary receipts evidencing the Depositary Shares in accordance with the deposit agreement and applicable law.
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Based upon the foregoing, and subject to the additional qualifications set forth below, we are of
the opinion that:
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1. |
Upon the Future Authorization and Issuance of shares of Common Stock, such shares of Common Stock will be validly issued, fully paid and nonassessable. |
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2. |
Upon the Future Authorization and Issuance of shares of Preferred Stock, such shares of Preferred Stock will be validly issued, fully paid and nonassessable. |
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3. |
Upon the Future Authorization and Issuance of Debt Securities, such Debt Securities will be valid and binding obligations of the Company. |
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4. |
Upon the Future Authorization and Issuance of Warrants, such Warrants will be valid and binding obligations of the Company. |
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5. |
Upon the Future Authorization and Issuance of Units, such Units will be valid and binding obligations of the Company. |
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6. |
Upon the Future Authorization and Issuance of Purchase Contracts, such Purchase Contracts will be valid and binding obligations of the Company. |
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7. |
Upon the Future Authorization and Issuance of Depositary Shares, such Depositary Shares will be legally issued and will entitle their holders to the rights specified in the deposit agreement. |
The opinions expressed above are subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of
general application affecting the rights and remedies of creditors and to general principles of equity.
We express no opinion with
respect to the effect of any law other than the law of the State of New York.
This opinion letter has been prepared in accordance with
the customary practice of lawyers who regularly give, and lawyers who regularly advise opinion recipients concerning, opinions of the type contained herein.
This opinion letter deals only with the specified legal issues expressly addressed herein, and you should not infer any opinion that is not
explicitly addressed herein from any matter stated in this letter.
We consent to the use of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not hereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act and the rules and regulations thereunder. This opinion is rendered
to
you as of the date hereof and we assume no obligation to advise you or any other person hereafter with regard to any change after the date hereof in the circumstances or the law that may bear on
the matters set forth herein even though the changes may affect the legal analysis or legal conclusion or other matters in this letter.
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Very truly yours, |
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/s/ Harter Secrest & Emery LLP |
EXHIBIT 12
FINANCIAL INSTITUTIONS, INC.
RATIO OF EARNINGS TO
COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
(Dollars in thousands)
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Years Ended December 31, |
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2014 |
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2013 |
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2012 |
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2011 |
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2010 |
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Including Interest on Deposits: |
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Earnings: |
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Income before taxes |
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$ |
38,980 |
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$ |
37,907 |
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$ |
34,768 |
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$ |
34,214 |
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$ |
30,639 |
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Fixed charges |
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7,895 |
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7,916 |
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9,588 |
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|
13,749 |
|
|
|
18,193 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
$ |
46,875 |
|
|
$ |
45,823 |
|
|
$ |
44,356 |
|
|
$ |
47,963 |
|
|
$ |
48,832 |
|
Fixed charges: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest on deposits |
|
$ |
6,366 |
|
|
$ |
6,600 |
|
|
$ |
8,462 |
|
|
$ |
11,434 |
|
|
$ |
14,853 |
|
Interest on borrowings |
|
|
915 |
|
|
|
737 |
|
|
|
589 |
|
|
|
1,821 |
|
|
|
2,867 |
|
Portion of rents representative of the interest factor (1/3) of rental expense |
|
|
614 |
|
|
|
579 |
|
|
|
537 |
|
|
|
494 |
|
|
|
473 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total fixed charges |
|
|
7,895 |
|
|
|
7,916 |
|
|
|
9,588 |
|
|
|
13,749 |
|
|
|
18,193 |
|
Preferred stock dividend requirements |
|
|
1,941 |
|
|
|
2,177 |
|
|
|
2,186 |
|
|
|
2,817 |
|
|
|
4,833 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fixed charges and preferred stock dividends |
|
$ |
9,836 |
|
|
$ |
10,093 |
|
|
$ |
11,774 |
|
|
$ |
16,566 |
|
|
$ |
23,026 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ratio of earnings to fixed charges |
|
|
5.94 |
|
|
|
5.79 |
|
|
|
4.63 |
|
|
|
3.49 |
|
|
|
2.68 |
|
Ratio of earnings to fixed charges and preferred dividends |
|
|
4.77 |
|
|
|
4.54 |
|
|
|
3.77 |
|
|
|
2.90 |
|
|
|
2.12 |
|
|
|
|
|
|
|
Excluding Interest on Deposits: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Earnings: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before taxes |
|
$ |
38,980 |
|
|
$ |
37,907 |
|
|
$ |
34,768 |
|
|
$ |
34,214 |
|
|
$ |
30,639 |
|
Fixed charges |
|
|
1,529 |
|
|
|
1,316 |
|
|
|
1,126 |
|
|
|
2,315 |
|
|
|
3,340 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
$ |
40,509 |
|
|
$ |
39,223 |
|
|
$ |
35,894 |
|
|
$ |
36,529 |
|
|
$ |
33,979 |
|
Fixed charges: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest on borrowings |
|
$ |
915 |
|
|
$ |
737 |
|
|
$ |
589 |
|
|
$ |
1,821 |
|
|
$ |
2,867 |
|
Portion of rents representative of the interest factor (1/3) of rental expense |
|
|
614 |
|
|
|
579 |
|
|
|
537 |
|
|
|
494 |
|
|
|
473 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total fixed charges |
|
|
1,529 |
|
|
|
1,316 |
|
|
|
1,126 |
|
|
|
2,315 |
|
|
|
3,340 |
|
Preferred stock dividend requirements |
|
|
1,941 |
|
|
|
2,177 |
|
|
|
2,186 |
|
|
|
2,817 |
|
|
|
4,833 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fixed charges and preferred stock dividends |
|
$ |
3,470 |
|
|
$ |
3,493 |
|
|
$ |
3,312 |
|
|
$ |
5,132 |
|
|
$ |
8,173 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ratio of earnings to fixed charges |
|
|
26.49 |
|
|
|
29.80 |
|
|
|
31.88 |
|
|
|
15.78 |
|
|
|
10.17 |
|
Ratio of earnings to fixed charges and preferred dividends |
|
|
11.67 |
|
|
|
11.23 |
|
|
|
10.84 |
|
|
|
7.12 |
|
|
|
4.16 |
|
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
The Board of Directors
Financial Institutions, Inc.:
We consent to the use of our reports dated March 6, 2015, with respect to the consolidated statements of financial condition of Financial Institutions,
Inc. and subsidiaries as of December 31, 2014 and 2013, and the related consolidated statements of income, comprehensive income, changes in shareholders equity, and cash flows for each of the years in the three-year period ended
December 31, 2014, and the effectiveness of internal control over financial reporting, incorporated by reference herein, and to the reference to our firm under the heading Experts in the prospectus.
/s/ KPMG LLP
Rochester, New York
March 16, 2015
Exhibit 25.1
File No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF
ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
¨ |
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
WILMINGTON
TRUST, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
16-1486454
(I.R.S.
employer identification no.)
1100 North Market Street
Wilmington, DE 19890
(Address of principal executive offices)
Robert C. Fiedler
Vice
President and Counsel
1100 North Market Street
Wilmington, Delaware 19890
(302) 651-8541
(Name, address and telephone number of agent for service)
Financial Institutions, Inc.
(Exact name of obligor as specified in its charter)
|
|
|
New York |
|
16-0816610 |
(State of incorporation) |
|
(I.R.S. employer
identification no.) |
|
|
|
220 Liberty Street
Warsaw, New York |
|
14569 |
(Address of principal executive offices) |
|
(Zip Code) |
Senior Debt Securities
Subordinated Debt Securities
(Title of the indenture securities)
Item 1. |
GENERAL INFORMATION. Furnish the following information as to the trustee: |
|
(a) |
Name and address of each examining or supervising authority to which it is subject. |
Comptroller of Currency, Washington, D.C.
Federal Deposit Insurance Corporation, Washington, D.C.
|
(b) |
Whether it is authorized to exercise corporate trust powers. |
Yes.
Item 2. |
AFFILIATIONS WITH THE OBLIGOR. If the obligor is an affiliate of the trustee, describe each affiliation: |
Based upon an examination of the books and records of the trustee and upon information furnished by the obligor, the obligor is not an
affiliate of the trustee.
Item 16. |
LIST OF EXHIBITS. Listed below are all exhibits filed as part of this Statement of Eligibility and Qualification. |
|
1. |
A copy of the Charter for Wilmington Trust, National Association, incorporated by reference to Exhibit 1 of Form T-1. |
|
2. |
The authority of Wilmington Trust, National Association to commence business was granted under the Charter for Wilmington Trust, National Association, incorporated herein by reference to Exhibit 1 of Form T-1.
|
|
3. |
The authorization to exercise corporate trust powers was granted under the Charter for Wilmington Trust, National Association, incorporated herein by reference to Exhibit 1 of Form T-1. |
|
4. |
A copy of the existing By-Laws of Trustee, as now in effect, incorporated herein by reference to Exhibit 4 of form T-1. |
|
6. |
The consent of Trustee as required by Section 321(b) of the Trust Indenture Act of 1939, incorporated herein by reference to Exhibit 6 of Form T-1. |
|
7. |
Current Report of the Condition of Trustee, published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7. |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wilmington Trust, National Association, a national banking
association organized and existing under the laws of the United States of America, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Wilmington and State of
Delaware on the 16th day of March, 2015.
|
|
|
|
|
WILMINGTON TRUST, NATIONAL ASSOCIATION |
|
|
By: |
|
/s/ W. Thomas Morris, II |
|
|
Name: |
|
W. Thomas Morris II |
|
|
Title: |
|
Vice President |
EXHIBIT 1
CHARTER OF WILMINGTON TRUST, NATIONAL ASSOCIATION
ARTICLES OF ASSOCIATION
OF
WILMINGTON TRUST,
NATIONAL ASSOCIATION
For the purpose of organizing an association to perform any lawful activities of national banks, the undersigned
do enter into the following articles of association:
FIRST. The title of this association shall be Wilmington Trust, National Association.
SECOND. The main office of the association shall be in the City of Wilmington, County of New Castle, State of Delaware. The general business of the
association shall be conducted at its main office and its branches.
THIRD. The board of directors of this association shall consist of not less than five
nor more than twenty-five persons, unless the OCC has exempted the bank from the 25-member limit. The exact number is to be fixed and determined from time to time by resolution of a majority of the full board of directors or by resolution of a
majority of the shareholders at any annual or special meeting thereof. Each director shall own common or preferred stock of the association or of a holding company owning the association, with an aggregate par, fair market or equity value $1,000.
Determination of these values may be based as of either (i) the date of purchase or (ii) the date the person became a director, whichever value is greater. Any combination of common or preferred stock of the association or holding company
may be used.
Any vacancy in the board of directors may be filled by action of a majority of the remaining directors between meetings of
shareholders. The board of directors may not increase the number of directors between meetings of shareholders to a number which:
|
1) |
exceeds by more than two the number of directors last elected by shareholders where the number was 15 or less; or |
|
2) |
exceeds by more than four the number of directors last elected by shareholders where the number was 16 or more, but in no event shall the number of directors exceed 25, unless the OCC has exempted the bank from the
25-member limit. |
Directors shall be elected for terms of one year and until their successors are elected and qualified.
Terms of directors, including directors selected to fill vacancies, shall expire at the next regular meeting of shareholders at which directors are elected, unless the directors resign or are removed from office. Despite the expiration of a
directors term, the director shall continue to serve until his or her successor is elected and qualifies or until there is a decrease in the number of directors and his or her position is eliminated.
Honorary or advisory members of the board of directors, without voting power or power of final decision in matters concerning the business of
the association, may be appointed by resolution of a majority of the full board of directors, or by resolution of shareholders at any annual or special meeting. Honorary or advisory directors shall not be counted to determine the number of directors
of the association or the presence of a quorum in connection with any board action, and shall not be required to own qualifying shares.
FOURTH. There
shall be an annual meeting of the shareholders to elect directors and transact whatever other business may be brought before the meeting. It shall be held at the main office or any other convenient place the board of directors may designate, on the
day of each year specified therefor in
the bylaws, or, if that day falls on a legal holiday in the state in which the association is located, on the next following banking day. If no election is held on the day fixed, or in the event
of a legal holiday on the following banking day, an election may be held on any subsequent day within 60 days of the day fixed, to be designated by the board of directors, or, if the directors fail to fix the day, by shareholders representing
two-thirds of the shares issued and outstanding. In all cases at least 10 days advance notice of the time, place and purpose of a shareholders meeting shall be given to the shareholders by first class mail, unless the OCC determines that an
emergency circumstance exists. The sole shareholder of the bank is permitted to waive notice of the shareholders meeting.
In all
elections of directors, the number of votes each common shareholder may cast will be determined by multiplying the number of shares such shareholder owns by the number of directors to be elected. Those votes may be cumulated and cast for a single
candidate or may be distributed among two or more candidates in the manner selected by the shareholder. If, after the first ballot, subsequent ballots are necessary to elect directors, a shareholder may not vote shares that he or she has already
fully cumulated and voted in favor of a successful candidate. On all other questions, each common shareholder shall be entitled to one vote for each share of stock held by him or her.
Nominations for election to the board of directors may be made by the board of directors or by any stockholder of any outstanding class of
capital stock of the association entitled to vote for election of directors. Nominations other than those made by or on behalf of the existing management shall be made in writing and be delivered or mailed to the president of the association not
less than 14 days nor more than 50 days prior to any meeting of shareholders called for the election of directors; provided, however, that if less than 21 days notice of the meeting is given to shareholders, such nominations shall be mailed or
delivered to the president of the association not later than the close of business on the seventh day following the day on which the notice of meeting was mailed. Such notification shall contain the following information to the extent known to the
notifying shareholder:
|
1) |
The name and address of each proposed nominee. |
|
2) |
The principal occupation of each proposed nominee. |
|
3) |
The total number of shares of capital stock of the association that will be voted for each proposed nominee. |
|
4) |
The name and residence address of the notifying shareholder. |
|
5) |
The number of shares of capital stock of the association owned by the notifying shareholder. |
Nominations not made in accordance herewith may, in his/her discretion, be disregarded by the chairperson of the meeting, and
the vote tellers may disregard all votes cast for each such nominee. No bylaw may unreasonably restrict the nomination of directors by shareholders.
A director may resign at any time by delivering written notice to the board of directors, its chairperson, or to the
association, which resignation shall be effective when the notice is delivered unless the notice specifies a later effective date.
A director may be removed by shareholders at a meeting called to remove the director, when notice of the meeting stating that
the purpose or one of the purposes is to remove the director is provided, if there is a failure to fulfill one of the affirmative requirements for qualification, or for cause; provided, however, that a director may not be removed if the number of
votes sufficient to elect the director under cumulative voting is voted against the directors removal.
FIFTH. The authorized amount of capital stock of this association shall be ten thousand shares of common stock of
the par value of one hundred dollars ($100) each; but said capital stock may be increased or decreased from time to time, according to the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the association shall have any preemptive or preferential right of subscription to
any shares of any class of stock of the association, whether now or hereafter authorized, or to any obligations convertible into stock of the association, issued, or sold, nor any right of subscription to any thereof other than such, if any, as the
board of directors, in its discretion, may from time to time determine and at such price as the board of directors may from time to time fix. Preemptive rights also must be approved by a vote of holders of two-thirds of the banks outstanding
voting shares. Unless otherwise specified in these articles of association or required by law, (1) all matters requiring shareholder action, including amendments to the articles of association, must be approved by shareholders owning a majority
voting interest in the outstanding voting stock, and (2) each shareholder shall be entitled to one vote per share.
Unless otherwise
specified in these articles of association or required by law, all shares of voting stock shall be voted together as a class, on any matters requiring shareholder approval. If a proposed amendment would affect two or more classes or series in the
same or a substantially similar way, all the classes or series so affected must vote together as a single voting group on the proposed amendment.
Shares of one class or series may be issued as a dividend for shares of the same class or series on a pro rata basis and without
consideration. Shares of one class or series may be issued as share dividends for a different class or series of stock if approved by a majority of the votes entitled to be cast by the class or series to be issued, unless there are no outstanding
shares of the class or series to be issued. Unless otherwise provided by the board of directors, the record date for determining shareholders entitled to a share dividend shall be the date authorized by the board of directors for the share dividend.
Unless otherwise provided in the bylaws, the record date for determining shareholders entitled to notice of and to vote at any meeting is
the close of business on the day before the first notice is mailed or otherwise sent to the shareholders, provided that in no event may a record date be more than 70 days before the meeting.
If a shareholder is entitled to fractional shares pursuant to a stock dividend, consolidation or merger, reverse stock split or otherwise, the
association may: (a) issue fractional shares; (b) in lieu of the issuance of fractional shares, issue script or warrants entitling the holder to receive a full share upon surrendering enough script or warrants to equal a full share;
(c) if there is an established and active market in the associations stock, make reasonable arrangements to provide the shareholder with an opportunity to realize a fair price through sale of the fraction, or purchase of the additional
fraction required for a full share; (d) remit the cash equivalent of the fraction to the shareholder; or (e) sell full shares representing all the fractions at public auction or to the highest bidder after having solicited and received
sealed bids from at least three licensed stock brokers; and distribute the proceeds pro rata to shareholders who otherwise would be entitled to the fractional shares. The holder of a fractional share is entitled to exercise the rights for
shareholder, including the right to vote, to receive dividends, and to participate in the assets of the association upon liquidation, in proportion to the fractional interest. The holder of script or warrants is not entitled to any of these rights
unless the script or warrants explicitly provide for such rights. The script or warrants may be subject to such additional conditions as: (1) that the script or warrants will become void if not exchanged for full shares before a specified date;
and (2) that the shares for which the script or warrants are exchangeable may be sold at the option of the association and the proceeds paid to scriptholders.
The association, at any time and from time to time, may authorize and issue debt obligations,
whether or not subordinated, without the approval of the shareholders. Obligations classified as debt, whether or not subordinated, which may be issued by the association without the approval of shareholders, do not carry voting rights on any issue,
including an increase or decrease in the aggregate number of the securities, or the exchange or reclassification of all or part of securities into securities of another class or series.
SIXTH. The board of directors shall appoint one of its members president of this association, and one of its members chairperson of the board and shall have
the power to appoint one or more vice presidents, a secretary who shall keep minutes of the directors and shareholders meetings and be responsible for authenticating the records of the association, and such other officers and employees
as may be required to transact the business of this association.
A duly appointed officer may appoint one or more officers or assistant
officers if authorized by the board of directors in accordance with the bylaws.
The board of directors shall have the power to:
|
1) |
Define the duties of the officers, employees, and agents of the association. |
|
2) |
Delegate the performance of its duties, but not the responsibility for its duties, to the officers, employees, and agents of the association. |
|
3) |
Fix the compensation and enter into employment contracts with its officers and employees upon reasonable terms and conditions consistent with applicable law. |
|
4) |
Dismiss officers and employees. |
|
5) |
Require bonds from officers and employees and to fix the penalty thereof. |
|
6) |
Ratify written policies authorized by the associations management or committees of the board. |
|
7) |
Regulate the manner in which any increase or decrease of the capital of the association shall be made, provided that nothing herein shall restrict the power of shareholders to increase or decrease the capital of the
association in accordance with law, and nothing shall raise or lower from two-thirds the percentage required for shareholder approval to increase or reduce the capital. |
|
8) |
Manage and administer the business and affairs of the association. |
|
9) |
Adopt initial bylaws, not inconsistent with law or the articles of association, for managing the business and regulating the affairs of the association. |
|
10) |
Amend or repeal bylaws, except to the extent that the articles of association reserve this power in whole or in part to shareholders. |
|
12) |
Generally perform all acts that are legal for a board of directors to perform. |
SEVENTH. The board of
directors shall have the power to change the location of the main office to any other place within the limits of Wilmington, Delaware, without the approval of the shareholders, or with a vote of shareholders owning two-thirds of the stock of such
association for a relocation outside such limits and upon receipt of a certificate of approval from the Comptroller of the Currency, to any other location within or outside the limits of Wilmington Delaware, but not more than 30 miles beyond such
limits. The board of directors shall have the power to establish or change the location of any branch or branches of the association to any other location permitted under applicable law, without approval of shareholders, subject to approval by the
Comptroller of the Currency.
EIGHTH. The corporate existence of this association shall continue until termination according to the laws of the
United States.
NINTH. The board of directors of this association, or any one or more shareholders owning, in the aggregate, not less than 50 percent of
the stock of this association, may call a special meeting of shareholders at any time. Unless otherwise provided by the bylaws or the laws of the United States, a notice of the time, place, and purpose of every annual and special meeting of the
shareholders shall be given at least 10 days prior to the meeting by first-class mail, unless the OCC determines that an emergency circumstance exists. If the association is a wholly-owned subsidiary, the sole shareholder may waive notice of the
shareholders meeting. Unless otherwise provided by the bylaws or these articles, any action requiring approval of shareholders must be effected at a duly called annual or special meeting.
TENTH. For purposes of this Article Tenth, the term institution-affiliated party shall mean any institution-affiliated party of the association as
such term is defined in 12 U.S.C. 1813(u).
Any institution-affiliated party (or his or her heirs, executors or administrators) may be
indemnified or reimbursed by the association for reasonable expenses actually incurred in connection with any threatened, pending or completed actions or proceedings and appeals therein, whether civil, criminal, governmental, administrative or
investigative, in accordance with and to the fullest extent permitted by law, as such law now or hereafter exists; provided, however, that when an administrative proceeding or action instituted by a federal banking agency results in a final order or
settlement pursuant to which such person: (i) is assessed a civil money penalty, (ii) is removed from office or prohibited from participating in the conduct of the affairs of the association, or (iii) is required to cease and desist
from or to take any affirmative action described in 12 U.S.C. 1818(b) with respect to the association, then the association shall require the repayment of all legal fees and expenses advanced pursuant to the next succeeding paragraph and may not
indemnify such institution-affiliated parties (or their heirs, executors or administrators) for expenses, including expenses for legal fees, penalties or other payments incurred. The association shall provide indemnification in connection with an
action or proceeding (or part thereof) initiated by an institution-affiliated party (or by his or her heirs, executors or administrators) only if such action or proceeding (or part thereof) was authorized by the board of directors.
Expenses incurred by an institution-affiliated party (or by his or her heirs, executors or administrators) in connection with any action or
proceeding under 12 U.S.C. 164 or 1818 may be paid by the association in advance of the final disposition of such action or proceeding upon (a) a determination by the board of directors acting by a quorum consisting of directors who are not
parties to such action or proceeding that the institution-affiliated party (or his or her heirs, executors or administrators) has a reasonable basis for prevailing on the merits, (b) a determination that the indemnified individual (or his or
her heirs, executors or administrators) will have the financial capacity to reimburse the bank in the event he or she does not prevail, (c) a determination that the payment of expenses and fees by the association will not adversely affect the
safety and soundness of the association, and (d) receipt of an undertaking by or on behalf of such institution-affiliated party (or by his or her heirs, executors or administrators) to repay such advancement in the event of a final order or
settlement pursuant to which such person: (i) is assessed a civil money penalty, (ii) is removed from office or prohibited from participating in the conduct of the affairs of the association, or (iii) is required to cease and desist
from or to take any affirmative action described in 12 U.S.C. 1818(b) with respect to the association. In all other instances, expenses incurred by an institution-affiliated party (or by his or her heirs, executors or administrators) in connection
with any action or proceeding as to which indemnification may be given under these articles of association may be paid by the association in advance of the final disposition of such action or proceeding upon (a) receipt of an undertaking by or
on behalf of such institution-affiliated party (or by or on behalf of his or her heirs, executors or administrators) to repay such advancement in the event that
such institution-affiliated party (or his or her heirs, executors or administrators) is ultimately found not to be entitled to indemnification as authorized by these articles of association and
(b) approval by the board of directors acting by a quorum consisting of directors who are not parties to such action or proceeding or, if such a quorum is not obtainable, then approval by stockholders. To the extent permitted by law, the board
of directors or, if applicable, the stockholders, shall not be required to find that the institution-affiliated party has met the applicable standard of conduct provided by law for indemnification in connection with such action or proceeding.
In the event that a majority of the members of the board of directors are named as respondents in an administrative proceeding or civil action
and request indemnification, the remaining members of the board may authorize independent legal counsel to review the indemnification request and provide the remaining members of the board with a written opinion of counsel as to whether the
conditions delineated in the first four paragraphs of this Article Tenth have been met. If independent legal counsel opines that said conditions have been met, the remaining members of the board of directors may rely on such opinion in authorizing
the requested indemnification.
In the event that all of the members of the board of directors are named as respondents in an
administrative proceeding or civil action and request indemnification, the board shall authorize independent legal counsel to review the indemnification request and provide the board with a written opinion of counsel as to whether the conditions
delineated in the first four paragraphs of this Article Tenth have been met. If legal counsel opines that said conditions have been met, the board of directors may rely on such opinion in authorizing the requested indemnification.
To the extent permitted under applicable law, the rights of indemnification and to the advancement of expenses provided in these articles of
association (a) shall be available with respect to events occurring prior to the adoption of these articles of association, (b) shall continue to exist after any restrictive amendment of these articles of association with respect to events
occurring prior to such amendment, (c) may be interpreted on the basis of applicable law in effect at the time of the occurrence of the event or events giving rise to the action or proceeding, or on the basis of applicable law in effect at the
time such rights are claimed, and (d) are in the nature of contract rights which may be enforced in any court of competent jurisdiction as if the association and the institution-affiliated party (or his or her heirs, executors or
administrators) for whom such rights are sought were parties to a separate written agreement.
The rights of indemnification and to the
advancement of expenses provided in these articles of association shall not, to the extent permitted under applicable law, be deemed exclusive of any other rights to which any such institution affiliated party (or his or her heirs, executors or
administrators) may now or hereafter be otherwise entitled whether contained in these articles of association, the bylaws, a resolution of stockholders, a resolution of the board of directors, or an agreement providing such indemnification, the
creation of such other rights being hereby expressly authorized. Without limiting the generality of the foregoing, the rights of indemnification and to the advancement of expenses provided in these articles of association shall not be deemed
exclusive of any rights, pursuant to statute or otherwise, of any such institution-affiliated party (or of his or her heirs, executors or administrators) in any such action or proceeding to have assessed or allowed in his or her favor, against the
association or otherwise, his or her costs and expenses incurred therein or in connection therewith or any part thereof.
If this Article
Tenth or any part hereof shall be held unenforceable in any respect by a court of competent jurisdiction, it shall be deemed modified to the minimum extent necessary to make it enforceable, and the remainder of this Article Tenth shall remain fully
enforceable.
The association may, upon affirmative vote of a majority of its board of directors, purchase
insurance to indemnify its institution-affiliated parties to the extent that such indemnification is allowed in these articles of association; provided, however, that no such insurance shall include coverage to pay or reimburse any
institution-affiliated party for the cost of any judgment or civil money penalty assessed against such person in an administrative proceeding or civil action commenced by any federal banking agency. Such insurance may, but need not, be for the
benefit of all institution-affiliated parties.
ELEVENTH. These articles of association may be amended at any regular or special meeting of the
shareholders by the affirmative vote of the holders of a majority of the stock of this association, unless the vote of the holders of a greater amount of stock is required by law, and in that case by the vote of the holders of such greater amount.
The associations board of directors may propose one or more amendments to the articles of association for submission to the shareholders.
EXHIBIT 4
BY-LAWS OF WILMINGTON TRUST, NATIONAL ASSOCIATION
AMENDED AND RESTATED BYLAWS
OF
WILMINGTON TRUST,
NATIONAL ASSOCIATION
ARTICLE I
Meetings of Shareholders
Section 1. Annual Meeting. The annual meeting of the shareholders to elect directors and transact whatever other business may
properly come before the meeting shall be held at the main office of the association, Rodney Square North, 1100 Market Street, City of Wilmington, State of Delaware, at 1:00 oclock p.m. on the first Tuesday in March of each year, or at such
other place and time as the board of directors may designate, or if that date falls on a legal holiday in Delaware, on the next following banking day. Notice of the meeting shall be mailed by first class mail, postage prepaid, at least 10 days and
no more than 60 days prior to the date thereof, addressed to each shareholder at his/her address appearing on the books of the association. If, for any cause, an election of directors is not made on that date, or in the event of a legal holiday, on
the next following banking day, an election may be held on any subsequent day within 60 days of the date fixed, to be designated by the board of directors, or, if the directors fail to fix the date, by shareholders representing two-thirds of the
shares. In these circumstances, at least 10 days notice must be given by first class mail to shareholders.
Section 2.
Special Meetings. Except as otherwise specifically provided by statute, special meetings of the shareholders may be called for any purpose at any time by the board of directors or by any one or more shareholders owning, in the aggregate, not
less than fifty percent of the stock of the association. Every such special meeting, unless otherwise provided by law, shall be called by mailing, postage prepaid, not less than 10 days nor more than 60 days prior to the date fixed for the meeting,
to each shareholder at the address appearing on the books of the association a notice stating the purpose of the meeting.
The board of
directors may fix a record date for determining shareholders entitled to notice and to vote at any meeting, in reasonable proximity to the date of giving notice to the shareholders of such meeting. The record date for determining shareholders
entitled to demand a special meeting is the date the first shareholder signs a demand for the meeting describing the purpose or purposes for which it is to be held.
A special meeting may be called by shareholders or the board of directors to amend the articles of association or bylaws, whether or not such
bylaws may be amended by the board of directors in the absence of shareholder approval.
If an annual or special shareholders
meeting is adjourned to a different date, time, or place, notice need not be given of the new date, time or place, if the new date, time or place is announced at the meeting before adjournment, unless any additional items of business are to be
considered, or the association becomes aware of an intervening event materially affecting any matter to be voted on more than 10 days prior to the date to which the meeting is adjourned. If a new record date for the adjourned meeting is fixed,
however, notice of the adjourned meeting must be given to persons who are shareholders as of the new record date. If, however, the meeting to elect the directors is adjourned before the election takes place, at least ten days notice of the new
election must be given to the shareholders by first-class mail.
Section 3. Nominations of Directors. Nominations for election to the board of
directors may be made by the board of directors or by any stockholder of any outstanding class of capital stock of the association entitled to vote for the election of directors. Nominations, other than those made by or on behalf of the existing
management of the association, shall be made in writing and shall be delivered or mailed to the president of the association and the Comptroller of the Currency, Washington, D.C., not less than 14 days nor more than 50 days prior to any meeting of
shareholders called for the election of directors; provided, however, that if less than 21 days notice of the meeting is given to shareholders, such nomination shall be mailed or delivered to the president of the association not later
than the close of business on the seventh day following the day on which the notice of meeting was mailed. Such notification shall contain the following information to the extent known to the notifying shareholder:
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(1) |
The name and address of each proposed nominee; |
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(2) |
The principal occupation of each proposed nominee; |
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(3) |
The total number of shares of capital stock of the association that will be voted for each proposed nominee; |
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(4) |
The name and residence of the notifying shareholder; and |
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(5) |
The number of shares of capital stock of the association owned by the notifying shareholder. |
Nominations not made in accordance herewith may, in his/her discretion, be disregarded by the chairperson of the meeting, and upon his/her
instructions, the vote tellers may disregard all votes cast for each such nominee.
Section 4. Proxies. Shareholders may vote
at any meeting of the shareholders by proxies duly authorized in writing, but no officer or employee of this association shall act as proxy. Proxies shall be valid only for one meeting, to be specified therein, and any adjournments of such meeting.
Proxies shall be dated and filed with the records of the meeting. Proxies with facsimile signatures may be used and unexecuted proxies may be counted upon receipt of a written confirmation from the shareholder. Proxies meeting the above requirements
submitted at any time during a meeting shall be accepted.
Section 5. Quorum. A majority of the outstanding capital stock,
represented in person or by proxy, shall constitute a quorum at any meeting of shareholders, unless otherwise provided by law, or by the shareholders or directors pursuant to Article IX, Section 2, but less than a quorum may adjourn any
meeting, from time to time, and the meeting may be held, as adjourned, without further notice. A majority of the votes cast shall decide every question or matter submitted to the shareholders at any meeting, unless otherwise provided by law or by
the articles of association, or by the shareholders or directors pursuant to Article IX, Section 2. If a meeting for the election of directors is not held on the fixed date, at least 10 days notice must be given by first-class mail to the
shareholders.
ARTICLE II
Directors
Section 1. Board of Directors. The board of directors shall have the power to manage and administer the business and affairs of
the association. Except as expressly limited by law, all corporate powers of the association shall be vested in and may be exercised by the board of directors.
Section 2. Number. The board of directors shall consist of not less than five nor more than twenty-five members, unless the OCC
has exempted the bank from the 25-member limit. The exact number within such minimum and maximum limits is to be fixed and determined from time to time by resolution of a majority of the full board of directors or by resolution of a majority of the
shareholders at any meeting thereof.
Section 3. Organization Meeting. The secretary or treasurer, upon receiving the
certificate of the judges of the result of any election, shall notify the directors-elect of their election and of the time at which they are required to meet at the main office of the association, or at such other place in the cities of Wilmington,
Delaware or Buffalo, New York, to organize the new board of directors and elect and appoint officers of the association for the succeeding year. Such meeting shall be held on the day of the election or as soon thereafter as practicable, and, in any
event, within 30 days thereof. If, at the time fixed for such meeting, there shall not be a quorum, the directors present may adjourn the meeting, from time to time, until a quorum is obtained.
Section 4. Regular Meetings. The Board of Directors may, at any time and from time to time, by resolution designate the place,
date and hour for the holding of a regular meeting, but in the absence of any such designation, regular meetings of the board of directors shall be held, without notice, on the first Tuesday of each March, June and September, and on the second
Tuesday of each December at the main office or other such place as the board of directors may designate. When any regular meeting of the board of directors falls upon a holiday, the meeting shall be held on the next banking business day unless the
board of directors shall designate another day.
Section 5. Special Meetings. Special meetings of the board of directors may
be called by the Chairman of the Board of the association, or at the request of two or more directors. Each member of the board of directors shall be given notice by telegram, first class mail, or in person stating the time and place of each special
meeting.
Section 6. Quorum. A majority of the entire board then in office shall constitute a quorum at any meeting, except
when otherwise provided by law or these bylaws, but a lesser number may adjourn any meeting, from time to time, and the meeting may be held, as adjourned, without further notice. If the number of directors present at the meeting is reduced below the
number that would constitute a quorum, no business may be transacted, except selecting directors to fill vacancies in conformance with Article II, Section 7. If a quorum is present, the board of directors may take action through the vote of a
majority of the directors who are in attendance.
Section 7. Meetings by Conference Telephone. Any one or more members of the
board of directors or any committee thereof may participate in a meeting of such board or committees by means of a conference telephone or similar communications equipment allowing all persons participating in the meeting to hear each other at the
same time. Participation in a meeting by such means shall constitute presence in person at such meeting.
Section 8.
Procedures. The order of business and all other matters of procedure at every meeting of the board of directors may be determined by the person presiding at the meeting.
Section 9. Removal of Directors. Any director may be removed for cause, at any
meeting of stockholders notice of which shall have referred to the proposed action, by vote of the stockholders. Any director may be removed without cause, at any meeting of stockholders notice of which shall have referred to the proposed action, by
the vote of the holders of a majority of the shares of the Corporation entitled to vote. Any director may be removed for cause, at any meeting of the directors notice of which shall have referred to the proposed action, by vote of a majority of the
entire Board of Directors.
Section 10. Vacancies. When any vacancy occurs among the directors, a majority of the remaining
members of the board of directors, according to the laws of the United States, may appoint a director to fill such vacancy at any regular meeting of the board of directors, or at a special meeting called for that purpose at which a quorum is
present, or if the directors remaining in office constitute fewer than a quorum of the board of directors, by the affirmative vote of a majority of all the directors remaining in office, or by shareholders at a special meeting called for that
purpose in conformance with Section 2 of Article I. At any such shareholder meeting, each shareholder entitled to vote shall have the right to multiply the number of votes he or she is entitled to cast by the number of vacancies being filled
and cast the product for a single candidate or distribute the product among two or more candidates. A vacancy that will occur at a specific later date (by reason of a resignation effective at a later date) may be filled before the vacancy occurs but
the new director may not take office until the vacancy occurs.
ARTICLE III
Committees of the Board
The board of directors has power over and is solely responsible for the management, supervision, and administration of the association. The
board of directors may delegate its power, but none of its responsibilities, to such persons or committees as the board may determine.
The board of directors must formally ratify written policies authorized by committees of the board of directors before such policies become
effective. Each committee must have one or more member(s), and who may be an officer of the association or an officer or director of any affiliate of the association, who serve at the pleasure of the board of directors. Provisions of the articles of
association and these bylaws governing place of meetings, notice of meeting, quorum and voting requirements of the board of directors, apply to committees and their members as well. The creation of a committee and appointment of members to it must
be approved by the board of directors.
Section 1. Loan Committee. There shall be a loan committee composed of not less than 2
directors, appointed by the board of directors annually or more often. The loan committee, on behalf of the bank, shall have power to discount and purchase bills, notes and other evidences of debt, to buy and sell bills of exchange, to examine and
approve loans and discounts, to exercise authority regarding loans and discounts, and to exercise, when the board of directors is not in session, all other powers of the board of directors that may lawfully be delegated. The loan committee shall
keep minutes of its meetings, and such minutes shall be submitted at the next regular meeting of the board of directors at which a quorum is present, and any action taken by the board of directors with respect thereto shall be entered in the minutes
of the board of directors.
Section 2. Investment Committee. There shall be an investment committee composed of not less than
2 directors, appointed by the board of directors annually or more often. The investment committee, on behalf of the bank, shall have the power to ensure adherence to the investment policy, to recommend amendments thereto, to purchase and sell
securities, to exercise authority regarding
investments and to exercise, when the board of directors is not in session, all other powers of the board of directors regarding investment securities that may be lawfully delegated. The
investment committee shall keep minutes of its meetings, and such minutes shall be submitted at the next regular meeting of the board of directors at which a quorum is present, and any action taken by the board of directors with respect thereto
shall be entered in the minutes of the board of directors.
Section 3. Examining Committee. There shall be an examining
committee composed of not less than 2 directors, exclusive of any active officers, appointed by the board of directors annually or more often. The duty of that committee shall be to examine at least once during each calendar year and within 15
months of the last examination the affairs of the association or cause suitable examinations to be made by auditors responsible only to the board of directors and to report the result of such examination in writing to the board of directors at the
next regular meeting thereafter. Such report shall state whether the association is in a sound condition, and whether adequate internal controls and procedures are being maintained and shall recommend to the board of directors such changes in the
manner of conducting the affairs of the association as shall be deemed advisable.
Notwithstanding the provisions of the first paragraph
of this section 3, the responsibility and authority of the Examining Committee may, if authorized by law, be given over to a duly constituted audit committee of the associations parent corporation by a resolution duly adopted by the board of
directors.
Section 4. Trust Audit Committee. There shall be a trust audit committee in conformance with Section 1 of
Article V.
Section 5. Other Committees. The board of directors may appoint, from time to time, from its own members,
compensation, special litigation and other committees of one or more persons, for such purposes and with such powers as the board of directors may determine.
However, a committee may not:
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(1) |
Authorize distributions of assets or dividends; |
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(2) |
Approve action required to be approved by shareholders; |
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(3) |
Fill vacancies on the board of directors or any of its committees; |
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(4) |
Amend articles of association; |
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(5) |
Adopt, amend or repeal bylaws; or |
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(6) |
Authorize or approve issuance or sale or contract for sale of shares, or determine the designation and relative rights, preferences and limitations of a class or series of shares. |
Section 6. Committee Members Fees. Committee members may receive a fee for their services as committee members and traveling
and other out-of-pocket expenses incurred in attending any meeting of a committee of which they are a member. The fee may be a fixed sum to be paid for attending each meeting or a fixed sum to be paid quarterly, or semiannually, irrespective of the
number of meetings attended or not attended. The amount of the fee and the basis on which it shall be paid shall be determined by the Board of Directors.
ARTICLE IV
Officers and Employees
Section 1. Chairperson of the Board. The board of directors shall appoint one of its members to be the chairperson of the board to
serve at its pleasure. Such person shall preside at all meetings of the board of directors. The chairperson of the board shall supervise the carrying out of the policies adopted or approved by the board of directors; shall have general executive
powers, as well as the specific powers conferred by these bylaws; and shall also have and may exercise such further powers and duties as from time to time may be conferred upon or assigned by the board of directors.
Section 2. President. The board of directors shall appoint one of its members to be the president of the association. In the
absence of the chairperson, the president shall preside at any meeting of the board of directors. The president shall have general executive powers and shall have and may exercise any and all other powers and duties pertaining by law, regulation, or
practice to the office of president, or imposed by these bylaws. The president shall also have and may exercise such further powers and duties as from time to time may be conferred or assigned by the board of directors.
Section 3. Vice President. The board of directors may appoint one or more vice presidents. Each vice president shall have such
powers and duties as may be assigned by the board of directors. One vice president shall be designated by the board of directors, in the absence of the president, to perform all the duties of the president.
Section 4. Secretary. The board of directors shall appoint a secretary, treasurer, or other designated officer who shall be
secretary of the board of directors and of the association and who shall keep accurate minutes of all meetings. The secretary shall attend to the giving of all notices required by these bylaws; shall be custodian of the corporate seal, records,
documents and papers of the association; shall provide for the keeping of proper records of all transactions of the association; shall have and may exercise any and all other powers and duties pertaining by law, regulation or practice to the office
of treasurer, or imposed by these bylaws; and shall also perform such other duties as may be assigned from time to time, by the board of directors.
Section 5. Other Officers. The board of directors may appoint one or more assistant vice presidents, one or more trust officers,
one or more assistant secretaries, one or more assistant treasurers, one or more managers and assistant managers of branches and such other officers and attorneys in fact as from time to time may appear to the board of directors to be required or
desirable to transact the business of the association. Such officers shall respectively exercise such powers and perform such duties as pertain to their several offices, or as may be conferred upon or assigned to them by the board of directors, the
chairperson of the board, or the president. The board of directors may authorize an officer to appoint one or more officers or assistant officers.
Section 6. Tenure of Office. The president and all other officers shall hold office for the current year for which the board of
directors was elected, unless they shall resign, become disqualified, or be removed; and any vacancy occurring in the office of president shall be filled promptly by the board of directors.
Section 7. Resignation. An officer may resign at any time by delivering notice to the association. A resignation is effective when
the notice is given unless the notice specifies a later effective date.
ARTICLE V
Fiduciary Activities
Section 1. Trust Audit Committee. There shall be a Trust Audit Committee composed of not less than 2 directors, appointed by the
board of directors, which shall, at least once during each calendar year make suitable audits of the associations fiduciary activities or cause suitable audits to be made by auditors responsible only to the board, and at such time shall
ascertain whether fiduciary powers have been administered according to law, Part 9 of the Regulations of the Comptroller of the Currency, and sound fiduciary principles. Such committee: (1) must not include any officers of the bank or an
affiliate who participate significantly in the administration of the banks fiduciary activities; and (2) must consist of a majority of members who are not also members of any committee to which the board of directors has delegated power
to manage and control the fiduciary activities of the bank.
Notwithstanding the provisions of the first paragraph of this section 1, the
responsibility and authority of the Trust Audit Committee may, if authorized by law, be given over to a duly constituted audit committee of the associations parent corporation by a resolution duly adopted by the board of directors.
Section 2. Fiduciary Files. There shall be maintained by the association all fiduciary records necessary to assure that its
fiduciary responsibilities have been properly undertaken and discharged.
Section 3. Trust Investments. Funds held in a
fiduciary capacity shall be invested according to the instrument establishing the fiduciary relationship and applicable law. Where such instrument does not specify the character and class of investments to be made, but does vest in the association
investment discretion, funds held pursuant to such instrument shall be invested in investments in which corporate fiduciaries may invest under applicable law.
ARTICLE VI
Stock and
Stock Certificates
Section 1. Transfers. Shares of stock shall be transferable on the books of the association, and a
transfer book shall be kept in which all transfers of stock shall be recorded. Every person becoming a shareholder by such transfer shall in proportion to such shareholders shares, succeed to all rights of the prior holder of such shares. The
board of directors may impose conditions upon the transfer of the stock reasonably calculated to simplify the work of the association with respect to stock transfers, voting at shareholder meetings and related matters and to protect it against
fraudulent transfers.
Section 2. Stock Certificates. Certificates of stock shall bear the signature of the president (which
may be engraved, printed or impressed) and shall be signed manually or by facsimile process by the secretary, assistant secretary, treasurer, assistant treasurer, or any other officer appointed by the board of directors for that purpose, to be known
as an authorized officer, and the seal of the association shall be engraved thereon. Each certificate shall recite on its face that the stock represented thereby is transferable only upon the books of the association properly endorsed.
The board of directors may adopt or use procedures for replacing lost, stolen, or destroyed stock certificates as permitted by law.
The association may establish a procedure through which the beneficial owner of shares that are
registered in the name of a nominee may be recognized by the association as the shareholder. The procedure may set forth:
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(1) |
The types of nominees to which it applies; |
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(2) |
The rights or privileges that the association recognizes in a beneficial owner; |
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(3) |
How the nominee may request the association to recognize the beneficial owner as the shareholder; |
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(4) |
The information that must be provided when the procedure is selected; |
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(5) |
The period over which the association will continue to recognize the beneficial owner as the shareholder; |
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(6) |
Other aspects of the rights and duties created. |
ARTICLE VII
Corporate Seal
Section 1. Seal. The seal of the association shall be in such form as may be determined from time to time by the board of
directors. The president, the treasurer, the secretary or any assistant treasurer or assistant secretary, or other officer thereunto designated by the board of directors shall have authority to affix the corporate seal to any document requiring such
seal and to attest the same. The seal on any corporate obligation for the payment of money may be facsimile.
ARTICLE VIII
Miscellaneous Provisions
Section 1. Fiscal Year. The fiscal year of the association shall be the calendar year.
Section 2. Execution of Instruments. All agreements, indentures, mortgages, deeds, conveyances, transfers, certificates,
declarations, receipts, discharges, releases, satisfactions, settlements, petitions, schedules, accounts, affidavits, bonds, undertakings, proxies and other instruments or documents may be signed, executed, acknowledged, verified, delivered or
accepted on behalf of the association by the chairperson of the board, or the president, or any vice president, or the secretary, or the treasurer, or, if in connection with the exercise of fiduciary powers of the association, by any of those
offices or by any trust officer. Any such instruments may also be executed, acknowledged, verified, delivered or accepted on behalf of the association in such other manner and by such other officers as the board of directors may from time to time
direct. The provisions of this section 2 are supplementary to any other provision of these bylaws.
Section 3. Records. The
articles of association, the bylaws and the proceedings of all meetings of the shareholders, the board of directors, and standing committees of the board of directors shall be recorded in appropriate minute books provided for that purpose. The
minutes of each meeting shall be signed by the secretary, treasurer or other officer appointed to act as secretary of the meeting.
Section 4. Corporate Governance Procedures. To the extent not inconsistent with
federal banking statutes and regulations, or safe and sound banking practices, the association may follow the Delaware General Corporation Law, Del. Code Ann. tit. 8 (1991, as amended 1994, and as amended thereafter) with respect to matters of
corporate governance procedures.
Section 5. Indemnification. For purposes of this Section 5 of Article VIII, the term
institution-affiliated party shall mean any institution-affiliated party of the association as such term is defined in 12 U.S.C. 1813(u).
Any institution-affiliated party (or his or her heirs, executors or administrators) may be indemnified or reimbursed by the association for
reasonable expenses actually incurred in connection with any threatened, pending or completed actions or proceedings and appeals therein, whether civil, criminal, governmental, administrative or investigative, in accordance with and to the fullest
extent permitted by law, as such law now or hereafter exists; provided, however, that when an administrative proceeding or action instituted by a federal banking agency results in a final order or settlement pursuant to which such person:
(i) is assessed a civil money penalty, (ii) is removed from office or prohibited from participating in the conduct of the affairs of the association, or (iii) is required to cease and desist from or to take any affirmative action
described in 12 U.S.C. 1818(b) with respect to the association, then the association shall require the repayment of all legal fees and expenses advanced pursuant to the next succeeding paragraph and may not indemnify such institution-affiliated
parties (or their heirs, executors or administrators) for expenses, including expenses for legal fees, penalties or other payments incurred. The association shall provide indemnification in connection with an action or proceeding (or part thereof)
initiated by an institution-affiliated party (or by his or her heirs, executors or administrators) only if such action or proceeding (or part thereof) was authorized by the board of directors.
Expenses incurred by an institution-affiliated party (or by his or her heirs, executors or administrators) in connection with any action or
proceeding under 12 U.S.C. 164 or 1818 may be paid by the association in advance of the final disposition of such action or proceeding upon (a) a determination by the board of directors acting by a quorum consisting of directors who are not
parties to such action or proceeding that the institution-affiliated party (or his or her heirs, executors or administrators) has a reasonable basis for prevailing on the merits, (b) a determination that the indemnified individual (or his or
her heirs, executors or administrators) will have the financial capacity to reimburse the bank in the event he or she does not prevail, (c) a determination that the payment of expenses and fees by the association will not adversely affect the
safety and soundness of the association, and (d) receipt of an undertaking by or on behalf of such institution-affiliated party (or by his or her heirs, executors or administrators) to repay such advancement in the event of a final order or
settlement pursuant to which such person: (i) is assessed a civil money penalty, (ii) is removed from office or prohibited from participating in the conduct of the affairs of the association, or (iii) is required to cease and desist
from or to take any affirmative action described in 12 U.S.C. 1818(b) with respect to the association. In all other instances, expenses incurred by an institution-affiliated party (or by his or her heirs, executors or administrators) in connection
with any action or proceeding as to which indemnification may be given under these articles of association may be paid by the association in advance of the final disposition of such action or proceeding upon (a) receipt of an undertaking by or
on behalf of such institution-affiliated party (or by or on behalf of his or her heirs, executors or administrators) to repay such advancement in the event that such institution-affiliated party (or his or her heirs, executors or administrators) is
ultimately found not to be entitled to indemnification as authorized by these bylaws and (b) approval by the board of directors acting by a quorum consisting of directors who are not parties to such action or proceeding or, if such a quorum is
not obtainable, then approval by stockholders. To the extent permitted by law, the board of directors or, if applicable, the stockholders, shall not be required to find that the institution-affiliated party has met the applicable standard of conduct
provided by law for indemnification in connection with such action or proceeding.
In the event that a majority of the members of the board of directors are named as respondents in
an administrative proceeding or civil action and request indemnification, the remaining members of the board may authorize independent legal counsel to review the indemnification request and provide the remaining members of the board with a written
opinion of counsel as to whether the conditions delineated in the first four paragraphs of this Section 5 of Article VIII have been met. If independent legal counsel opines that said conditions have been met, the remaining members of the board
of directors may rely on such opinion in authorizing the requested indemnification.
In the event that all of the members of the board of
directors are named as respondents in an administrative proceeding or civil action and request indemnification, the board shall authorize independent legal counsel to review the indemnification request and provide the board with a written opinion of
counsel as to whether the conditions delineated in the first four paragraphs of this Section 5 of Article VIII have been met. If legal counsel opines that said conditions have been met, the board of directors may rely on such opinion in
authorizing the requested indemnification.
To the extent permitted under applicable law, the rights of indemnification and to the
advancement of expenses provided in these articles of association (a) shall be available with respect to events occurring prior to the adoption of these bylaws, (b) shall continue to exist after any restrictive amendment of these bylaws
with respect to events occurring prior to such amendment, (c) may be interpreted on the basis of applicable law in effect at the time of the occurrence of the event or events giving rise to the action or proceeding, or on the basis of
applicable law in effect at the time such rights are claimed, and (d) are in the nature of contract rights which may be enforced in any court of competent jurisdiction as if the association and the institution-affiliated party (or his or her
heirs, executors or administrators) for whom such rights are sought were parties to a separate written agreement.
The rights of
indemnification and to the advancement of expenses provided in these bylaws shall not, to the extent permitted under applicable law, be deemed exclusive of any other rights to which any such institution-affiliated party (or his or her heirs,
executors or administrators) may now or hereafter be otherwise entitled whether contained in the associations articles of association, these bylaws, a resolution of stockholders, a resolution of the board of directors, or an agreement
providing such indemnification, the creation of such other rights being hereby expressly authorized. Without limiting the generality of the foregoing, the rights of indemnification and to the advancement of expenses provided in these bylaws shall
not be deemed exclusive of any rights, pursuant to statute or otherwise, of any such institution-affiliated party (or of his or her heirs, executors or administrators) in any such action or proceeding to have assessed or allowed in his or her favor,
against the association or otherwise, his or her costs and expenses incurred therein or in connection therewith or any part thereof.
If
this Section 5 of Article VIII or any part hereof shall be held unenforceable in any respect by a court of competent jurisdiction, it shall be deemed modified to the minimum extent necessary to make it enforceable, and the remainder of this
Section 5 of Article VIII shall remain fully enforceable.
The association may, upon affirmative vote of a majority of its board of
directors, purchase insurance to indemnify its institution-affiliated parties to the extent that such indemnification is allowed in these bylaws; provided, however, that no such insurance shall include coverage for a final order assessing civil
money penalties against such persons by a bank regulatory agency. Such insurance may, but need not, be for the benefit of all institution-affiliated parties.
ARTICLE IX
Inspection and Amendments
Section 1. Inspection. A copy of the bylaws of the association, with all amendments, shall at all times be kept in a convenient
place at the main office of the association, and shall be open for inspection to all shareholders during banking hours.
Section 2. Amendments. The bylaws of the association may be amended, altered or repealed, at any regular meeting of the board of
directors, by a vote of a majority of the total number of the directors except as provided below, and provided that the following language accompany any such change.
I, , certify that:
(1) I am the duly constituted (secretary or treasurer) of and secretary of its board of directors, and as such officer am the official custodian of its records; (2) the foregoing bylaws are the bylaws of the association, and all of them
are now lawfully in force and effect.
I have hereunto affixed my official signature on this day of
.
The associations shareholders may amend or repeal the bylaws even though the bylaws also may be amended
or repealed by the board of directors.
EXHIBIT 6
Section 321(b) Consent
Pursuant to
Section 321(b) of the Trust Indenture Act of 1939, as amended, Wilmington Trust, National Association hereby consents that reports of examinations by Federal, State, Territorial or District authorities may be furnished by such authorities to
the Securities and Exchange Commission upon requests therefor.
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WILMINGTON TRUST, NATIONAL ASSOCIATION |
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Dated: |
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March 16, 2015 |
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By: |
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/s/ W. Thomas Morris, II |
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Name: |
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W. Thomas Morris II |
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Title: |
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Vice President |
EXHIBIT 7
REPORT OF CONDITION
WILMINGTON TRUST, NATIONAL ASSOCIATION
As of the close of business on September 30, 2014
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Thousands of Dollars |
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ASSETS |
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Cash and balances due from depository institutions: |
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2,209,972 |
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Securities: |
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5,367 |
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Federal funds sold and securities purchased under agreement to resell: |
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0 |
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Loans and leases held for sale: |
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0 |
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Loans and leases net of unearned income, allowance: |
|
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457,849 |
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Premises and fixed assets: |
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8,535 |
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Other real estate owned: |
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243 |
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Investments in unconsolidated subsidiaries and associated companies: |
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0 |
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Direct and indirect investments in real estate ventures: |
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0 |
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Intangible assets: |
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2,539 |
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Other assets: |
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62,620 |
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Total Assets: |
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2,747,125 |
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Thousands of Dollars |
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LIABILITIES |
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Deposits |
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2,148,025 |
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Federal funds purchased and securities sold under agreements to repurchase |
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97,000 |
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Other borrowed money: |
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0 |
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Other Liabilities: |
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68,901 |
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Total Liabilities |
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2,313,926 |
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Thousands of Dollars |
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EQUITY CAPITAL |
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Common Stock |
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1,000 |
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Surplus |
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386,419 |
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Retained Earnings |
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46,207 |
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Accumulated other comprehensive income |
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(427 |
) |
Total Equity Capital |
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433,199 |
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Total Liabilities and Equity Capital |
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2,747,125 |
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