As filed with the Securities and Exchange Commission on February 9, 2016
Registration Statement No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
The Bank of New York Mellon Corporation
(Exact name of registrant as specified in its charter)
|
|
|
Delaware
|
|
13-2614959
|
| (State or other jurisdiction of incorporation or organization) |
|
(I.R.S. Employer Identification Number) |
225 Liberty Street
New York, New York 10286
(212) 495-1784
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Kathleen B. McCabe, Esq.
Chief Securities Counsel
The Bank of New York Mellon Corporation
225 Liberty Street
New York, New York 10286
(212) 495-1784
(Name, address, including zip code, and telephone number, including area code, of agent for service of each registrant)
With copies to:
Mark Welshimer, Esq.
Sullivan & Cromwell LLP
125 Broad Street
New York, NY 10004
(212) 558-4000
Approximate Date of Commencement of Proposed Sale to the Public: From time to time after the 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 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. x
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to
Rule 413(b) under the Securities Act, check the following box. ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer”, “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
|
|
|
|
|
|
|
| Large accelerated filer x |
|
Accelerated filer ¨ |
|
Non-accelerated filer ¨ |
|
Smaller reporting company ¨ |
CALCULATION OF REGISTRATION FEE
|
|
|
|
|
| Title of each class of Securities to be registered |
|
Amount to be registered/
Proposed maximum offering price per unit/ Proposed maximum offering
price(1)(2) |
|
Amount of registration
fee(6) |
| Debt Securities of The Bank of New York Mellon Corporation |
|
|
|
|
| Preferred Stock, par value $0.01 per share, of The Bank of New York Mellon
Corporation(3) |
|
|
|
|
| Depositary Shares of The Bank of New York Mellon Corporation(3)(4) |
|
|
|
|
| Common Stock, par value $0.01 per share, of The Bank of New York Mellon
Corporation(3) |
|
|
|
|
| Stock Purchase Contracts of The Bank of New York Mellon Corporation |
|
|
|
|
| Stock Purchase Units of The Bank of New York Mellon Corporation(5) |
|
|
|
|
| Warrants of The Bank of New York Mellon Corporation |
|
|
|
|
| |
| |
| (1) |
An indeterminate aggregate initial offering price or number of the securities of each identified class is being registered as may from time to time be offered at
indeterminate prices. Separate consideration may or may not be received for securities that are issuable on exercise, conversion or exchange of other securities or that are issued in units or represented by depositary shares.
|
| (2) |
This Registration Statement also includes an indeterminate amount of securities of the classes specified in the table above that may be reoffered and resold on an
ongoing basis after their initial sale in market-making transactions by affiliates of The Bank of New York Mellon Corporation (the “Company”). These securities consist of an indeterminate amount of such securities that are initially being
registered, and will initially be offered and sold, under this Registration Statement and an indeterminate amount of such securities that were initially registered, and were initially offered and sold, under registration statements previously filed
by the Company or its predecessor The Bank of New York Company, Inc. All such market-making transactions with respect to these securities that are made pursuant to a registration statement after the effectiveness of this Registration Statement are
being made solely pursuant to this Registration Statement. Pursuant to Rule 457(q), no separate registration fee will be paid with respect to any of such securities that may be reoffered or resold after their initial sale in market-making
transactions. |
| (3) |
Shares of Preferred Stock, par value $0.01 per share, Depositary Shares and shares of Common Stock, par value $0.01 per share, of the Company may be issuable for
separate consideration or upon conversion of other securities registered hereunder. |
| (4) |
In the event that the Company elects to offer to the public fractional interests in shares of Preferred Stock registered hereunder, Depositary Shares of the Company,
evidenced by depositary receipts issued pursuant to a deposit agreement, will be distributed to those persons purchasing such fractional interests, and the shares of Preferred Stock will be issued to the depositary under any such agreement.
|
| (5) |
Each Stock Purchase Unit of the Company will be issued under a unit agreement or indenture and will represent an interest in two or more Debt Securities, warrants or
purchase contracts, which may or may not be separable from one another. |
| (6) |
In accordance with Rules 456(b) and 457(r), the Registrant is deferring payment of all of the registration fee subject to the conditions set forth in such rules.
|
This Registration Statement contains a prospectus relating to both the offering of newly issued securities and market-making
transactions that occur on an ongoing basis in securities that either will have been previously issued under this Registration Statement or were initially registered under registration statements previously filed by The Bank of New York Mellon
Corporation or its predecessor The Bank of New York Company, Inc. and were initially sold prior to the date of the prospectus (but are now registered hereunder with respect to ongoing market-making transactions).
PROSPECTUS
The Bank of New York Mellon Corporation
Debt Securities
Preferred Stock
Common Stock
Depositary Shares
Stock Purchase Contracts
Stock Purchase Units
Warrants
The Bank of New York Mellon Corporation, a Delaware corporation (also referred to as “BNY Mellon,” the “Company” or
“we”), may offer and sell from time to time, in one or more series, the securities listed above. Any selling shareholder named in a prospectus supplement may offer and sell from time to time shares of the common stock, par value $0.01 per
share (the “Common Stock”), of the Company that it acquires or acquired in transactions that were not, or will not be, registered under the Securities Act of 1933, as amended (the “Securities Act”). The Company will not receive
any proceeds from the sale of shares by a selling shareholder. See “Plan of Distribution (Conflicts of Interest)” for a further description of the manner in which we and/or any selling shareholder may dispose of the securities covered by
this prospectus.
The Common Stock of the Company is listed on the New York Stock Exchange under the symbol “BK.”
Unless otherwise indicated in the applicable prospectus supplement, the other securities offered hereby will not be listed on a national securities exchange.
This prospectus contains a general description of the securities which may be offered. The specific terms of the securities will be contained in one or more supplements to this prospectus. The supplement
may also add to, update or change information contained in this prospectus. The prospectus may not be used to offer or sell securities unless accompanied by a prospectus supplement describing the method and terms of the applicable offering. You
should carefully read this prospectus and the applicable prospectus supplement, together with the documents incorporated by reference herein and therein, before making an investment decision.
To read about certain important factors you should consider in making an investment decision, see “Risk Factors
” on page 5 of this prospectus.
THE SECURITIES WILL BE EQUITY SECURITIES IN OR UNSECURED OBLIGATIONS OF
THE COMPANY AND WILL NOT BE SAVINGS ACCOUNTS, DEPOSITS OR OTHER OBLIGATIONS OF ANY BANK OR NONBANK SUBSIDIARY OF THE COMPANY AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE DEPOSIT INSURANCE FUND OR ANY OTHER GOVERNMENT AGENCY.
THE DEBT SECURITIES ARE NOT BANK DEPOSITS AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY, NOR ARE THEY OBLIGATIONS OF, OR GUARANTEED BY, A BANK.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION, THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE BOARD
OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM NOR ANY OTHER REGULATORY BODY HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
This prospectus and the applicable prospectus supplement may be used in the initial sale of the securities. In addition, the Company, BNY
Mellon Capital Markets, LLC or any other affiliate controlled by the Company may use this prospectus and applicable prospectus supplement in a market-making transaction involving the securities after the initial sale. These transactions may be
executed at negotiated prices that are related to market prices at the time of purchase or sale, or at other prices. The Company and its affiliates may act as principal or agent in these transactions. Unless you are informed otherwise in the
confirmation of sale, this prospectus is being used in a market-making transaction.
The date of this prospectus is February
9, 2016.
TABLE OF CONTENTS
WE ARE RESPONSIBLE FOR THE INFORMATION CONTAINED AND INCORPORATED BY REFERENCE IN THIS PROSPECTUS AND ANY ACCOMPANYING
PROSPECTUS SUPPLEMENT, AND IN ANY FREE WRITING PROSPECTUS THAT WE PREPARE. WE HAVE NOT AUTHORIZED ANYONE TO GIVE YOU ANY OTHER INFORMATION, AND WE TAKE NO RESPONSIBILITY FOR ANY OTHER INFORMATION THAT OTHERS MAY GIVE YOU. THIS PROSPECTUS, ANY
ACCOMPANYING PROSPECTUS SUPPLEMENT AND ANY SUCH FREE WRITING PROSPECTUS MAY BE USED ONLY FOR THE PURPOSES FOR WHICH THEY HAVE BEEN PREPARED. YOU SHOULD NOT ASSUME THAT THE INFORMATION CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS IS
ACCURATE AS OF ANY DATE OTHER THAN THE DATE OF THIS PROSPECTUS OR THE DATE OF THE RELEVANT INCORPORATED DOCUMENT, AS APPLICABLE. THE FINANCIAL CONDITION, RESULTS OF OPERATIONS OR BUSINESS PROSPECTS OF THE COMPANY MAY HAVE CHANGED SINCE THOSE DATES.
WE ARE NOT MAKING AN OFFER OF THESE SECURITIES IN ANY JURISDICTION WHERE THE OFFER IS NOT PERMITTED.
i
ABOUT THIS PROSPECTUS
This document is called a prospectus. This summary highlights selected information from this prospectus and may not contain all of the
information that is important to you. To understand the terms of the securities, you should carefully read this prospectus and any accompanying prospectus supplement. This prospectus and the prospectus supplement together give the specific terms of
the securities being offered. You should also read the documents referred to under the heading “Where You Can Find More Information” for information on The Bank of New York Mellon Corporation (“BNY Mellon” or the
“Company”). The Company has its principal offices at 225 Liberty Street, New York, New York 10286 (telephone: 212-495-1784). Certain capitalized terms used in this summary are defined elsewhere in this prospectus.
The Company has filed a registration statement with the Securities and Exchange Commission (the “SEC”) under a
“shelf” registration procedure. Under this procedure, the Company may offer and sell from time to time, in one or more series, any one or a combination of the following securities:
| |
• |
|
unsecured Debt Securities of the Company, |
| |
• |
|
shares of Preferred Stock, $0.01 par value per share, of the Company (“Preferred Stock”), |
| |
• |
|
depositary shares representing Preferred Stock, |
| |
• |
|
shares of Common Stock, $0.01 par value per share, of the Company, |
| |
• |
|
Stock Purchase Contracts of the Company, |
| |
• |
|
Stock Purchase Units of the Company, and |
| |
• |
|
Warrants of the Company. |
The securities may be sold for U.S. dollars, foreign-denominated currency or currency units, including the Euro. Amounts payable with respect to any such securities may be payable in U.S. dollars or
foreign-denominated currency or currency units.
This prospectus provides you with a general description of the securities we
may offer. Each time we offer securities, we will provide you with a prospectus supplement that will describe the specific amounts, prices and terms of the securities being offered. The prospectus supplement may also add, update or change
information contained in this prospectus.
Any of the securities described in this prospectus and in a prospectus supplement
may be convertible or exchangeable into other securities that are described in this prospectus or will be described in a prospectus supplement or may be issued separately, together or as part of a unit consisting of two or more securities, which may
or may not be separate from one another. These securities may include new or hybrid securities developed in the future that combine features of any of the securities described in this prospectus.
The prospectus supplement may also contain information about certain United States federal income tax considerations relating to the
securities covered by the prospectus supplement.
The Company may sell securities to underwriters who will sell the securities
to the public on terms fixed at the time of sale. In addition, the securities may be sold by the Company directly or through dealers or agents designated from time to time, who may be affiliates of the Company. If the Company, directly or through
agents, solicits offers to purchase the securities, the Company reserves the sole right to accept and, together with its agents, to reject, in whole or in part, any such offer.
For the securities being sold, the prospectus supplement will also include the names of the underwriters, dealers or agents, if any,
their compensation, the terms of offering, and the net proceeds to the Company.
Any underwriters, dealers or agents
participating in the offering may be deemed “underwriters” within the meaning of the Securities Act.
1
Additionally, shares of Common Stock may be offered and sold from time to time by any
selling shareholder named in a prospectus supplement who has acquired, or will acquire, Common Stock from the Company in transactions that were not, or will not be, registered under the Securities Act, as described under “Plan of Distribution
(Conflicts of Interest).” Specific information with respect to any offer and sale by any selling shareholder will be set forth in the prospectus supplement relating to that transaction.
Conflicts of Interest
BNY Mellon Capital Markets, LLC, a broker-dealer
registered with the Financial Industry Regulatory Authority, Inc., which we refer to as FINRA, and a wholly-owned subsidiary of the Company, may participate in offerings of securities made by means of this prospectus. Accordingly, BNY Mellon Capital
Markets, LLC has a “conflict of interest” as defined in FINRA Rule 5121(f)(5)(B), and any offerings made by means of this prospectus will be conducted in compliance with Rule 5121. In general, under Rule 5121, a Qualified Independent
Underwriter will not be necessary for these offerings pursuant to Rule 5121(a)(1)(C) or Rule 5121(a)(1)(B), as the Company will be offering securities that have been rated investment grade or are in the same series as securities that have been
rated investment grade or will be offering its Common Stock, which has a bona fide public market for purposes of Rule 5121. No underwriter having a Rule 5121 conflict of interest will be permitted under Rule 5121 to confirm sales to any account over
which the underwriter exercises discretionary authority without the specific written approval of the accountholder.
WHERE YOU CAN FIND MORE INFORMATION
We are required to file annual, quarterly and current reports, proxy statements
and other information with the SEC. You may read and copy any documents filed by us at the SEC’s public reference room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the public
reference room. Our filings with the SEC are also available to the public through the SEC’s Internet site at http://www.sec.gov.
The Company has filed with the SEC a registration statement on Form S-3 relating to the securities covered by this prospectus. This prospectus is a part of the registration statement and does not contain
all of the information in the registration statement. Whenever a reference is made in this prospectus to a contract or other document of ours, please be aware that the reference is only a summary and that you should refer to the exhibits that are a
part of the registration statement for a copy of the contract or other document. You may review a copy of the registration statement at the SEC’s public reference room in Washington, D.C., as well as through the SEC’s Internet site.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC’s rules allow us to “incorporate by reference” information into this prospectus. This means that we can disclose
important information to you by referring you to another document. Any information referred to in this way is considered part of this prospectus from the date we file that document. Any reports filed by us with the SEC after the date of this
prospectus and before the date that the offering of the securities by means of this prospectus is terminated will automatically update and, where applicable, supersede any information contained in this prospectus or incorporated by reference in this
prospectus.
We incorporate by reference into this prospectus the following documents or information filed with the SEC (other
than, in each case, documents or information deemed to have been furnished and not filed in accordance with SEC rules, except as noted below):
| |
• |
|
Our Annual Report on Form 10-K for the year ended December 31, 2014, filed on February 27, 2015 (SEC File No. 001-35651) (our “Form
10-K”); |
2
| |
• |
|
Our Quarterly Reports on Form 10-Q for the quarter ended March 31, 2015, filed on May 8, 2015, for the quarter ended June 30, 2015,
filed on August 7, 2015, and for the quarter ended September 30, 2015, filed on November 6, 2015 (SEC File No. 001-35651); |
| |
• |
|
Our Current Reports on Form 8-K, filed on January 23, 2015 (Item 8.01 only), February 2, 2015, February 17,
2015, February 24, 2015 (both filings), March 6, 2015, March 11, 2015, March 19, 2015, April 14, 2015 (second filing only), April 15, 2015, April 22, 2015, April 28,
2015, May 21, 2015, May 29, 2015, August 17, 2015, October 19, 2015, November 27, 2015, January 14, 2016 (Item 2.02 is expressly incorporated by reference herein) and February 9, 2016 (SEC File
No. 001-35651); |
| |
• |
|
Our definitive Proxy Statement on Schedule 14A, filed on March 13, 2015 (only those portions incorporated by reference in our Form 10-K) (SEC File
No. 001-35651); |
| |
• |
|
The description of The Bank of New York Mellon Corporation common stock contained in the joint proxy statement prospectus included in the Registration
Statement of The Bank of New York Mellon Corporation on Form S-4 (File No. 333-140863) as filed with the SEC on February 23, 2007, and amended by Amendment No. 1 on April 2, 2007 and Amendment No. 2 on April 17, 2007,
as that description may be updated from time to time; |
| |
• |
|
Any documents filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), on or after the date of this prospectus and before the termination of the offering of the securities; and |
| |
• |
|
Solely with regard to the securities covered by this prospectus that were initially offered and sold under previously filed registration statements of
the Company (File Nos. 333-189568, 333-167832 and 333-144261) or its predecessor, The Bank of New York Company, Inc. (File No. 333-103003), and that from time to time may be reoffered and resold in
market-making transactions under this prospectus, the information in the prospectuses and prospectus supplements relating to those securities that were previously filed by the Company or its predecessor in connection with its initial offer and sale
(except to the extent that any such information has been modified or superseded by other information included or incorporated by reference in this prospectus). |
You may request a free copy of any or all of these filings by writing, emailing or telephoning us at the following address:
The Bank of New York Mellon Corporation
225 Liberty Street
New York, New York 10286
Attention: Office of the Secretary
Email: corpsecretary@bnymellon.com
Telephone: (212) 635-1787
3
THE COMPANY
The Bank of New York Mellon Corporation, a Delaware corporation (NYSE symbol: BK) is a global investments company dedicated to helping
its clients manage and service their financial assets throughout the investment lifecycle. Whether providing financial services for institutions, corporations or individual investors, BNY Mellon delivers informed investment management and investment
services in 35 countries and more than 100 markets. As of December 31, 2015, BNY Mellon had $28.9 trillion in assets under custody and/or administration, and $1.6 trillion in assets under management. BNY Mellon can act as a single point of
contact for clients looking to create, trade, hold, manage, service, distribute or restructure investments. “BNY Mellon” is the corporate brand of The Bank of New York Mellon Corporation.
The Company is a bank holding company and a financial holding company registered with the Board of Governors of the Federal Reserve
System (the “Federal Reserve”) under the Bank Holding Company Act of 1956, as amended. As such, we and our subsidiaries are subject to the supervision, examination and reporting requirements of the Bank Holding Company Act and the
regulations of the Federal Reserve.
Our principal executive office is located at 225 Liberty Street, New York, New York
10286, telephone number: (212) 495-1784. Our website is http://www.bnymellon.com.
When we refer to “we”,
“our” or “us” in this prospectus we mean BNY Mellon and its consolidated subsidiaries.
4
RISK FACTORS
Before you invest in any of our securities, in addition to the other information in this prospectus, you should carefully consider the
risk factors contained in Part I, Item 1A under the caption “Risk Factors” in our Annual Report on Form 10-K for the fiscal year ended December 31, 2014 and in our 2014 Annual Report to Shareholders under the caption
“Management’s Discussion and Analysis of Financial Condition and Results of Operations—Risk Factors,” which are incorporated herein by reference (and similar terms in any of our annual or quarterly reports for a subsequent fiscal
year or fiscal quarter or current reports that we file with the SEC and that are so incorporated). See “Where You Can Find More Information” above for information about how to obtain a copy of these documents. Additional risks related to
our securities may also be described in a prospectus supplement.
CAUTIONARY STATEMENT REGARDING
FORWARD-LOOKING STATEMENTS
This prospectus, including documents incorporated by reference into this document, contains
statements relating to future results of BNY Mellon that are considered “forward-looking statements.”
These
statements, which may be expressed in a variety of ways, including the use of future or present tense language, relate to, among other things: all statements about the future results of BNY Mellon, projected business growth, statements with respect
to the expected outcome and impact of legal, regulatory and investigatory proceedings, regulatory, market, economic or accounting developments, and BNY Mellon’s plans, objectives and strategies.
These forward-looking statements, and other forward-looking statements contained in other public disclosures of BNY Mellon (including
those incorporated in this prospectus) are based on assumptions that involve risks and uncertainties and that are subject to change based on various important factors (some of which are beyond BNY Mellon’s control). Actual results may differ
materially from those expressed or implied as a result of a number of factors, such as: a technology disruption or information security event that results in a loss of confidential client information or impacts our ability to provide services to our
clients; failure to update our technology, develop and market new technology or protect our intellectual property; government regulation and supervision, and recent legislative and regulatory actions; failure to satisfy regulatory standards,
including capital adequacy rules; the risks relating to new lines of business, new products and services or strategic project initiatives; failure to attract and retain employees; regulatory actions or litigation; adverse publicity, government
scrutiny or other reputational harm; continued litigation and regulatory investigations and proceedings involving our foreign exchange standing instruction program; failure of our risk management framework to be effective; operational risk; failure
or circumvention of our controls and procedures; change or uncertainty in monetary, tax and other governmental policies; competition in all aspects of our business; political, economic, legal, operational and other risks inherent in operating
globally; acts of terrorism, natural disasters, pandemics and global conflicts; the risks and uncertainties relating to our strategic transactions; ongoing concerns about the financial stability of some countries in Europe, the failure or
instability of any of our significant counterparties in Europe, or a breakup of the Eurozone; continuing uncertainty in financial markets and weakness in the economy generally; continuing low or volatile interest rates; market volatility;
write-downs of securities that we own and other losses related to volatile and illiquid market conditions; our dependence on fee-based business for a substantial majority of our revenue and the potential adverse effects of a slowing in market
activity, weak financial markets, underperformance and/or negative trends in savings rates or in investment preferences; the impact of decreased cross-border investment activity on our foreign exchange revenues; any material reduction in our credit
ratings or the credit ratings of certain of our bank subsidiaries; the failure or instability of any of our significant counterparties, and our assumption of credit and counterparty risk; credit, regulatory and reputation risks as a result of our
tri-party repo collateral agency services; the impact of not effectively managing our liquidity; inadequate reserves for credit losses, including loan reserves; tax law changes or challenges to our tax positions; changes in accounting standards;
risks associated with being a holding company, including our
5
dependence on dividends from our subsidiaries; and the impact of provisions of U.S. banking laws and regulations, Delaware law or failure to pay full and timely dividends on our preferred stock
on our ability to return capital to shareholders.
All forward-looking statements speak only as of the date on which such
statements are made, and BNY Mellon undertakes no obligation to update any statement to reflect events or circumstances after the date on which such forward-looking statement is made or to reflect the occurrence of unanticipated events.
We caution you not to place undue reliance on these forward-looking statements.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES AND EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED
STOCK DIVIDENDS
For the periods shown below, the following table sets forth the consolidated ratios of earnings to fixed
charges and earnings to combined fixed charges and preferred stock dividends of BNY Mellon. For purposes of computing the foregoing ratios, earnings represent income (loss) from continuing operations before extraordinary item and income taxes
applicable to the shareholders of The Bank of New York Mellon Corporation. Fixed charges, excluding interest on deposits, include interest expense (other than on deposits) and the proportion deemed representative of the interest factor of rent
expense, net of income from subleases. Fixed charges, including interest on deposits, include all interest expense and the proportion deemed representative of the interest factor of rent expense, net of income from subleases.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Nine Months
Ended
September 30, |
|
|
Year Ended December 31, |
|
| |
|
2015 |
|
|
2014 |
|
|
2013 |
|
|
2012 |
|
|
2011 |
|
|
2010 |
|
| Earnings to Fixed Charges Ratios |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Excluding interest on deposits |
|
|
12.97 |
|
|
|
10.16 |
|
|
|
11.59 |
|
|
|
7.77 |
|
|
|
8.57 |
|
|
|
8.11 |
|
| Including interest on deposits |
|
|
11.72 |
|
|
|
8.51 |
|
|
|
9.14 |
|
|
|
6.14 |
|
|
|
6.04 |
|
|
|
6.68 |
|
|
|
|
|
|
|
|
| Earnings to Fixed Charges and Preferred Stock Dividends Ratios |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Excluding interest on deposits |
|
|
11.01 |
|
|
|
8.52 |
|
|
|
9.79 |
|
|
|
7.50 |
|
|
|
8.57 |
|
|
|
8.11 |
|
| Including interest on deposits |
|
|
10.11 |
|
|
|
7.35 |
|
|
|
8.01 |
|
|
|
5.97 |
|
|
|
6.04 |
|
|
|
6.68 |
|
6
USE OF PROCEEDS
Except as may be set forth in a prospectus supplement, the Company will use the net proceeds from the sale of the securities offered
hereby for general corporate purposes, including refinancing of existing debt, investments in, or extensions of credit to, our bank subsidiaries and, to a lesser extent, other existing or future subsidiaries. Pending such use, the net proceeds may
be temporarily invested in short-term obligations. The precise amounts and timing of the application of proceeds used for general corporate purposes will depend upon funding requirements of the Company and its subsidiaries and the availability of
other funds. The Company expects, on a recurring basis, to engage in additional financing of a character and amount to be determined as the need arises.
The Company will not receive any proceeds from the sale of any shares of Common Stock by any selling shareholder.
The Company will not receive any proceeds from the sale of any securities in connection with market-making transactions by BNY Mellon Capital Markets, LLC or any other affiliate of the Company.
7
DESCRIPTION OF DEBT SECURITIES
Summary
The following
description of the terms of the Senior Debt Securities and the Senior Subordinated Debt Securities to be issued by the Company (sometimes referred to as the “Debt Securities” in this “Description of Debt Securities”) sets forth
certain general terms and provisions. The particular terms of Debt Securities of any series will be contained in a prospectus supplement. The prospectus supplement will describe the following terms of the Debt Securities:
| |
• |
|
the title of the series of Debt Securities; |
| |
• |
|
whether the Debt Securities of the series are Senior Debt Securities or Senior Subordinated Debt Securities; |
| |
• |
|
any limit on the aggregate principal amount of the Debt Securities of the series; |
| |
• |
|
the price (expressed as a percentage of the aggregate principal amount thereof) at which Debt Securities of the series will be issued;
|
| |
• |
|
the Person to whom any interest on a Debt Security of the series will be payable, if other than the Person in whose name that Debt Security (or one or
more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest; |
| |
• |
|
the date or dates on which the principal of the Debt Securities of the series will be payable; |
| |
• |
|
the rate or rates per annum at which the Debt Securities of the series will bear interest, if any (or the formula pursuant to which such rate or rates
will be determined); |
| |
• |
|
the date or dates from which any such interest will accrue and the dates on which such payment of any such interest will be payable and the Regular
Record Dates for such interest payment dates; |
| |
• |
|
if Debt Securities of the series are sold bearing no interest or below market interest, known as original issue discount securities, the amount payable
upon acceleration and special tax, accounting and other considerations; |
| |
• |
|
the place or places where the principal of (and premium, if any, on) and interest, if any, on the Debt Securities of the series will be payable and the
manner in which any payment may be made, if other than in accordance with the applicable procedures of the applicable depositary for Debt Securities issued in global form; |
| |
• |
|
the period or periods within which, the price or prices at which, and the terms and conditions upon which, Debt Securities of the series may be
redeemed, in whole or in part, at the option of the Company; |
| |
• |
|
the obligation, if any, of the Company to redeem, repay or purchase Debt Securities of the series pursuant to any sinking fund or analogous provision
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, such Debt Securities will be redeemed, repaid or purchased, in whole or in part, pursuant to such
obligation; |
| |
• |
|
the denominations in which the Debt Securities of the series will be issuable, if other than denominations of $1,000 and any integral multiple thereof;
|
| |
• |
|
the currency, currencies, composite currency, composite currencies or currency units in which payment of principal of (or premium, if any, on) or
interest, if any, on Debt Securities of the series will be payable, 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 any purpose;
|
| |
• |
|
if the principal of (or premium, if any, on) or interest, if any, on Debt Securities of the series is to be payable, at the election of the Company or
a holder thereof, in one or more currencies, composite currencies or currency units other than that or those in which such series of Debt Securities are stated to |
8
| |
be payable, the currency, currencies, composite currency, composite currencies or currency units in which payment of the principal of (or premium, if any, on) or interest, if any, on such Debt
Securities as to which such election is made will be payable, and the period or periods within which, and the terms and conditions upon which, such election is to be made and the amount so payable (or the manner in which such amount shall be
determined); |
| |
• |
|
the index, formula or other method, if any, with reference to which the amount of any payment of principal of (or premium, if any, on) or interest, if
any, on Debt Securities of the series will be determined; |
| |
• |
|
if the principal amount payable at the Stated Maturity of the Debt Securities of the series will not be determinable as of any one or more dates prior
to the Stated Maturity, the amount which will be deemed to be the principal amount of such Debt Securities as of any such date for any purpose, including the principal amount which will be due and payable upon any Maturity other than the Stated
Maturity or which will be deemed to be outstanding as of any date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to be the principal amount will be determined); |
| |
• |
|
the portion of the principal amount of the Debt Securities of the series that will be payable upon declaration of acceleration of the maturity thereof,
if other than the entire principal amount thereof; |
| |
• |
|
the terms, if any, relating to the issuance, payment or conversion of any Debt Securities of the series that may be converted into securities or other
property other than Debt Securities of the same series and of like tenor, whether in addition to, or in lieu of, any payment of principal or other amount and whether at the option of the Company or otherwise; |
| |
• |
|
any addition to, elimination of or other change in the Events of Default or, in the case of Senior Subordinated Debt Securities, Defaults, that apply
to the Debt Securities of the series and, in the case of the Senior Debt Securities, any change in the rights of the trustee or the required holders of those Debt Securities to declare the principal thereof due and payable;
|
| |
• |
|
whether either or both of the provisions of the Applicable Indenture (as defined below) described under “—Legal Defeasance and Covenant
Defeasance” will be applicable to the Debt Securities of the series; |
| |
• |
|
if Debt Securities are sold for one or more foreign currencies, composite currencies, or currency units, or principal, interest or premium are payable
in one or more foreign currencies, composite currencies, or currency units, the restrictions, elections, tax consequences and other information regarding the issue and one or more foreign currencies, composite currencies, or currency units;
|
| |
• |
|
if the Debt Securities are Senior Subordinated Debt Securities, whether the subordination provisions summarized below or other subordination provisions
will be applicable to such Senior Subordinated Debt Securities; |
| |
• |
|
any change in the actions permitted or required to be taken by or on behalf of the holders of the Debt Securities of the series, including any such
change that permits or requires any or all such actions to be taken by or on behalf of the holders of any specific Debt Securities of the series rather than or in addition to the holders of all Debt Securities of the series;
|
| |
• |
|
the remarketing or extension features, if any, of the Debt Securities of the series; |
| |
• |
|
any addition to, elimination of or other change in the covenants that apply to the Debt Securities of the series; and |
| |
• |
|
any other material terms of the Debt Securities of the series. |
The terms of any Debt Security of a series may differ from the terms of other Debt Securities of the same series. The matters referenced
above may be established and set forth or determined as described with respect to all or any specific Debt Securities of a series (in each case to the extent permitted by the Trust Indenture Act).
9
Unless otherwise stated in a prospectus supplement, the Debt Securities of each series will
be represented by fully registered global certificates issued as global Debt Securities to be deposited with a depositary with respect to that series, instead of paper certificates issued to each individual owner. The depositary arrangements that
will apply, including the manner in which principal of (and premium, if any, on) and interest, if any, on the Debt Securities of any series and other payments will be payable are discussed in more detail under the heading “Book-Entry
Issuance.”
The Senior Debt Securities may be issued in one or more series under the Senior Indenture, dated as of
February 9, 2016, between BNY Mellon and Deutsche Bank Trust Company Americas, as Trustee, as supplemented from time to time (the “Senior Indenture”). The Senior Subordinated Debt Securities may be issued in one or more series under an
Indenture, dated as of February 9, 2016, between BNY Mellon and Wilmington Trust, National Association, as Trustee, as supplemented from time to time (the “Senior Subordinated Indenture”).
We will appoint The Bank of New York Mellon, our affiliate, as paying agent, authenticating agent and security registrar under each of
the Senior Indenture and the Senior Subordinated Indenture, unless otherwise stated in a prospectus supplement.
The Senior
Indenture and the Senior Subordinated Indenture are sometimes referred to collectively as the “Indentures.” The Indentures are qualified under the Trust Indenture Act. The Debt Securities of each series will be established under the
applicable Indenture pursuant to a supplemental indenture, resolution of the Company’s Board of Directors or a committee thereof or officers’ certificate. The Trustee on the applicable Indenture is referred to as the “Trustee.”
The Indentures do not limit the aggregate principal amount of the Debt Securities or of any particular series of Debt
Securities that may be issued thereunder and provide that Debt Securities may be issued from time to time in series. In addition, a series of Debt Securities may be reopened in order to issue additional Debt Securities of that series in the future
without the consent of the holders of Debt Securities of that series.
The following summaries of certain provisions of the
Senior Debt Securities, the Senior Subordinated Debt Securities and the Indentures are not complete. For a complete description of these Debt Securities you should read the Indenture applicable to a particular series of Debt Securities (the
“Applicable Indenture”), including the definitions therein of certain terms. Each Indenture is incorporated by reference as an exhibit to the registration statement of which this prospectus is a part, and the following summaries do not
purport to be complete and are qualified in their entirety by reference to the Indentures.
Debt Securities Issued by the Company under the
Senior Indenture or the Senior Subordinated Indenture
Wherever we refer to particular sections, articles or defined terms
of the Applicable Indenture we are incorporating those sections, articles or defined terms into this prospectus by reference. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Applicable Indenture.
General
The
Senior Debt Securities issued by the Company will be unsecured obligations of the Company and will rank equally with all other unsecured and unsubordinated indebtedness of the Company. As of December 31, 2015, indebtedness of the Company that
would have ranked equally with the Senior Debt Securities totaled approximately $19.7 billion. As of December 31, 2015, no indebtedness of the Company would have ranked senior to the Senior Debt Securities. The Senior Subordinated Debt
Securities issued by the Company will be unsecured subordinated obligations of the Company.
Because the Company is a holding
company, its rights and the rights of its creditors, including the holders of the Debt Securities, to a share of the assets of any subsidiary upon the liquidation or recapitalization of the
10
subsidiary will be subject to the prior claims of the subsidiary’s creditors (including, in the case of bank subsidiaries, their depositors), except to the extent that the Company may itself
be a creditor with recognized claims against the subsidiary. Accordingly, the Debt Securities will be effectively subordinated to all existing and future liabilities of the Company’s subsidiaries, and holders of Debt Securities should look only
to the assets of the Company for payments on the Debt Securities.
Unless otherwise provided in a prospectus supplement:
| |
• |
|
principal of (and premium, if any, on) and interest, if any, on the Debt Securities issued by the Company will be payable, and the Debt Securities will
be exchangeable and transfers thereof will be registerable, at the office or agency of the Company maintained for such purpose (which, as of the date of this prospectus, will be the office or agency of The Bank of New York Mellon in the Borough of
Manhattan, The City of New York), except that, at the option of the Company, interest may be paid (i) by mailing a check to the address of the person entitled thereto as it appears in the security register or (ii) by wire transfer in
immediately available funds at the place and to the account as the Person entitled thereto may designate, as specified in the security register in writing not less than ten business days before the interest payment date, and provided that payment on
Debt Securities issued as global Debt Securities may be made pursuant to the applicable depositary’s applicable procedures (Sections 202, 305 and 1002); |
| |
• |
|
the Debt Securities of each series will be issued only in registered form without coupons and in denominations of $1,000 and integral multiples thereof
(Section 302); and |
| |
• |
|
we will not pay any additional amounts on the notes to compensate any holder or beneficial owner for any United States tax withheld from payments of
principal or interest on the Debt Securities (Section 1001). |
No service charge will be made for any
registration of transfer or exchange of the Debt Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. (Section 305).
Debt Securities may be issued with original issue discount if they are sold at a substantial discount below their principal amount.
Special federal income tax, accounting and other considerations applicable thereto will be described in the prospectus supplement relating thereto. (Section 101).
If any index or formula is used to determine the amount of payments of principal of, premium, if any, or interest on any series of Debt Securities, special United States federal income tax, accounting and
other considerations applicable thereto will be described in the prospectus supplement relating thereto.
If the Debt
Securities are denominated in whole or in part in any currency, currencies, composite currency, composite currencies or currency units other than the currency of the United States of America, if the principal of (or premium, if any, on) or interest,
if any, on the Debt Securities are to be payable at the election of the Company or a holder thereof, in any currency, currencies, composite currency, composite currencies or currency units other than that in which such Debt Securities are to be
payable, or if any index is used to determine the amount of payments of principal of (or premium, if any, on) or interest, if any, on the Debt Securities of any series, special federal income tax, accounting and other considerations applicable
thereto will be described in the prospectus supplement relating thereto.
The Indentures do not contain any provisions that
would provide protection to holders of the Debt Securities against a sudden and dramatic decline in credit quality of the Company resulting from any highly leveraged transaction, takeover, merger, recapitalization or similar restructuring or change
in control.
The Indentures allow us to merge or consolidate with another company, or to sell all or substantially all of our
assets to another company, provided that certain conditions are satisfied. If these events occur, the other
11
company will be required to assume our responsibilities relating to the Debt Securities, and we will be released from all liabilities and obligations. See “—Consolidation, Merger and
Sale of Assets” for a more detailed discussion.
The Indentures provide that holders of a majority of the total principal
amount of outstanding Debt Securities of any series may vote to change certain of our obligations or certain of your rights concerning the Debt Securities of that series. However, to change the amount or timing of principal, interest or other
payments under the Debt Securities, every holder in the series must consent. See “—Modification of the Indentures” for a more detailed discussion.
Subordination of Senior Subordinated Debt Securities
The payment of the
principal of (and premium, if any, on) and interest, if any, on the Senior Subordinated Debt Securities will, to the extent set forth in the Senior Subordinated Indenture, be subordinated in right of payment to the prior payment in full of all
Senior Indebtedness (as defined in the Senior Subordinated Indenture). Upon any payment or distribution of assets to creditors upon any liquidation, dissolution, winding up, reorganization, assignment for the benefit of creditors, marshaling of
assets or any bankruptcy, insolvency or similar proceedings of the Company, the holders of all Senior Indebtedness will first be entitled to receive payment in full of all amounts due or to become due thereon before the holders of the Senior
Subordinated Debt Securities will be entitled to receive any payment in respect of the principal of (or premium, if any, on) or interest, if any, on the Senior Subordinated Debt Securities. In the event of the acceleration of the maturity of any
Senior Subordinated Debt Securities, the holders of all Senior Indebtedness will first be entitled to receive payment in full of all amounts due thereon before the holders of the Senior Subordinated Debt Securities will be entitled to receive any
payment upon the principal of (or premium, if any, on) or interest, if any, on the Senior Subordinated Debt Securities. No payments on account of principal of (or premium, if any, on) or interest, if any, on the Senior Subordinated Debt Securities
or on account of the purchase or acquisition of Senior Subordinated Debt Securities may be made if there shall have occurred and be continuing either a default in any payment with respect to Senior Indebtedness or any event of default permitting the
holders of any Senior Indebtedness to declare such Senior Indebtedness due and payable prior to the date on which such Senior Indebtedness would otherwise have become due and payable, or if any judicial proceeding shall be pending with respect to
any such default. However, none of the foregoing will prevent the satisfaction of any sinking fund payment with respect to certain Securities, as described in the Senior Subordinated Indenture, which have been acquired prior to such default.
(Article Thirteen of the Senior Subordinated Indenture).
By reason of such subordination in favor of the holders of Senior
Indebtedness, in the event of insolvency, creditors of the Company who are not holders of Senior Indebtedness or of the Senior Subordinated Debt Securities may recover less, ratably, than holders of Senior Indebtedness and may recover more, ratably,
than the holders of the Senior Subordinated Debt Securities.
Unless otherwise specified in the prospectus supplement relating
to Senior Subordinated Debt Securities of a particular series offered thereby, Senior Indebtedness is defined in the Senior Subordinated Indenture as (a) all indebtedness and obligations (other than the Securities) of, or guaranteed or assumed
by, the Company that are for borrowed money, or are evidenced by bonds, debentures, notes or other similar instruments, or are deferred obligations for the payment of the purchase price of property or assets, in each case, whether outstanding on the
date of the Senior Subordinated Indenture or thereafter created, incurred, assumed or guaranteed, (b) obligations of the Company that are similar to those in clause (a) above and arise from off-balance sheet guarantees and direct credit
substitutes, in each case, whether outstanding on the date of the Senior Subordinated Indenture or thereafter created, incurred, assumed or guaranteed, and (c) all obligations of the Company associated with derivative products such as interest
rate and foreign exchange contracts, commodity contracts and similar arrangements, in each case, whether outstanding on the date of the Senior Subordinated Indenture or thereafter created, incurred, assumed or guaranteed, and, in the case of each of
clauses (a), (b) and (c) above, all amendments, renewals, extensions, modifications and refunding of such indebtedness and obligations. However,
12
in each case Senior Indebtedness shall not include (i) the Senior Subordinated Debt Securities, (ii) the Existing Senior Subordinated Indebtedness (as defined in the Senior Subordinated
Indenture), (iii) the Existing Junior Subordinated Indebtedness (as defined in the Senior Subordinated Indenture) and (iv) such other indebtedness of the Company as is by its terms expressly stated (A) not to be senior in right of payment
to, or (B) to rank pari passu with, or (C) to rank junior in right of payment to, the Securities or the other securities referred to in clause (ii). (Section 101 of the Senior Subordinated Indenture).
The Company’s obligations under the Senior Subordinated Debt Securities shall rank equally in right of payment with each other.
As of December 31, 2015, indebtedness of the Company that would have been senior to the Senior Subordinated Debt
Securities totaled approximately $19.7 billion.
A Senior Subordinated Indenture does not limit or prohibit the incurrence of
additional Senior Indebtedness, which may include indebtedness that is senior to the Senior Subordinated Debt Securities but subordinate to other obligations of the Company. When issued, the Senior Debt Securities will constitute Senior
Indebtedness.
In addition, the Senior Subordinated Debt Securities may be fully subordinate to interests held by the U.S.
government in the event we enter into a receivership, insolvency, liquidation or similar proceeding, including a proceeding under the “orderly liquidation authority” provisions of the Dodd-Frank Wall Street Reform and Consumer Protection
Act (the “Dodd-Frank Act”).
The prospectus supplement may further describe the provisions, if any, applicable to
the subordination of the Senior Subordinated Debt Securities of a particular series.
Conversion or Exchange
If and to the extent indicated in the applicable prospectus supplement, the Debt Securities of any series may be convertible or
exchangeable into securities or other property other than Debt Securities of the same series. The provisions necessary to permit or facilitate the issuance, payment or conversion of such Debt Securities of any series will be set forth in the
applicable prospectus supplement. Such terms may include provisions for conversion or exchange, either mandatory, at the option of the holder, or at the option of the Company, in which case the number or principal amount of such other securities to
be received by the holders of Debt Securities would be calculated as of a time and in the manner stated in the applicable prospectus supplement.
Legal Defeasance and Covenant Defeasance
If the Debt Securities of a
series may be subject to legal defeasance or covenant defeasance or either type of defeasance under the Applicable Indenture, the prospectus supplement relating to that series will so indicate.
If applicable to the Debt Securities of a series, “legal defeasance” means that the Company elects to defease and be discharged
from any and all obligations with respect to such Debt Securities (including, in the case of Senior Subordinated Debt Securities, the provisions described under “—Subordination of Senior Subordinated Debt Securities”), except for the
obligations to register the transfer or exchange of such Debt Securities, to replace temporary or mutilated, destroyed, lost or stolen Debt Securities, to maintain an office or agency in respect of the Debt Securities and to hold moneys for payment
in trust.
If applicable to the Debt Securities of a series, “covenant defeasance” means that the Company elects to
be released from its obligations with respect to such Debt Securities under Section 1005 of the Senior Indenture (and any covenants provided pursuant to Section 301(xviii), 901(2) or 901(7) of the Applicable Indenture for the benefit of
the holders of such Debt Securities) and the consequences of the occurrence of an event specified in, in the case of Senior Debt Securities, Section 501(4) of the Senior Indenture, and in the case of Senior Subordinated
13
Debt Securities, Section 503(c) of the Senior Subordinated Indenture (with respect to Section 1005 of the Senior Indenture and any covenants provided pursuant to
Section 301(xviii), 901(2) or 901(7) of the Applicable Indenture), and, if applicable, in the case of Senior Debt Securities, pursuant to Section 501(7) of the Senior Indenture, and in the case of Senior Subordinated Debt Securities,
pursuant to Section 503(d) of the Senior Subordinated Indenture.
Legal defeasance or covenant defeasance, as applicable,
will only occur upon the deposit with the applicable Trustee (or other qualifying trustee), in trust for such purpose, of (A) money in an amount, (B) U.S. Government Obligations that, through the scheduled payment of principal and interest
in accordance with their terms will provide money in an amount, (C) other obligations or arrangements as may be specified in the applicable prospectus supplement with respect to the such Debt Securities, or (D) a combination of thereof, in
each case, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the applicable Trustee, to pay and discharge (i) the principal of (and premium, if any, on)
and interest, if any, on such Debt Securities to maturity or redemption, as the case may be, and (ii) any mandatory sinking fund payments or analogous payments applicable to such Debt Securities on the due dates thereof. Before such a deposit
the Company may make arrangements satisfactory to the Trustee for the redemption of Securities at a future date or dates. As a condition to legal defeasance or covenant defeasance, the Company must deliver to the applicable Trustee an Opinion of
Counsel (as specified in the Applicable Indenture) to the effect that the holders of such Debt Securities will not recognize gain or loss for federal income tax purposes as a result of such legal defeasance or covenant defeasance and will be subject
to federal income tax on the same amount, in the same manner and at the same times as would have been the case if such legal defeasance or covenant defeasance had not occurred. In the case of legal defeasance, such opinion must refer to and be based
upon a ruling of the Internal Revenue Service issued to the Company or published as a revenue ruling or upon a change in applicable federal income tax law, in any such case after the date of the Applicable Indenture.
The Company may exercise its legal defeasance option with respect to such Debt Securities notwithstanding its prior exercise of its
covenant defeasance option. If the Company exercises its legal defeasance option, payment of such Debt Securities may not be accelerated because of an Event of Default. If the Company exercises its covenant defeasance option, payment of such Senior
Debt Securities may not be accelerated by reference to the covenants noted in the description of covenant defeasance, and, with respect Senior Subordinated Debt Securities, there may not be any default with respect to the covenants noted in the
description of covenant defeasance. (Article 13 of the Applicable Indenture). However, with respect to such Senior Debt Securities, if such an acceleration were to occur, the realizable value at the acceleration date of the money and U.S. Government
Obligations in the defeasance trust could be less than the principal and interest then due on such Debt Securities, in that the required deposit in the defeasance trust is based upon scheduled cash flows rather than market value, which will vary
depending upon interest rates and other factors.
A prospectus supplement may further describe the provisions, if any,
applicable to legal defeasance or covenant defeasance with respect to the Debt Securities of a particular series.
Limitation on
Disposition of Stock of the Bank
The Senior Indenture contains a covenant by the Company that, so long as any of the
Senior Debt Securities are outstanding, but subject to the rights of the Company in connection with its consolidation with or merger into another Person or a sale of the Company’s assets, neither the Company nor any Intermediate Subsidiary will
sell, assign, transfer, grant a security interest in or otherwise dispose of any shares of, or securities convertible into, or options, warrants or rights to subscribe for or purchase shares of, Voting Stock of the Bank (except to the Company or an
Intermediate Subsidiary) nor will the Company or any Intermediate Subsidiary permit the Bank to issue any shares of, or securities convertible into, or options, warrants or rights to subscribe for or purchase shares of, Voting Stock of the Bank,
unless (a) any such sale, assignment, transfer, grant of a security interest or other disposition is made for fair market value, as determined by the Board of Directors of the Company or any Intermediate Subsidiary, as the case may be, and
evidenced by a duly adopted resolution thereof and (b) the
14
Company and any one or more Intermediate Subsidiaries will collectively own at least 80% of the issued and outstanding Voting Stock of the Bank (or any successor to the Bank) free and clear of
any security interest after giving effect to such transaction. The foregoing, however, will not preclude the Bank from being consolidated with or merged into another banking corporation organized under the laws of the United States, any State
thereof or the District of Columbia, if after such merger or consolidation the Company (or any successor thereto in a permissible merger) and any one or more Intermediate Subsidiaries own at least 80% of the Voting Stock of the resulting bank and
immediately after giving effect thereto no Event of Default and no event which would become an Event of Default shall have occurred and be continuing. The Company further covenants that it will not permit any Intermediate Subsidiary that owns any
shares of, or securities convertible into, or options, warrants or rights to subscribe for or purchase shares of, Voting Stock of the Bank to cease to be an Intermediate Subsidiary. “Intermediate Subsidiary” means a subsidiary
(i) that is organized under the laws of the United States, any State thereof or the District of Columbia and (ii) of which all the shares of each class of capital stock issued and outstanding, and all securities convertible into, and
options, warrants and rights to subscribe for or purchase shares of, such capital stock, are owned directly or indirectly by the Company, free and clear of any security interest. (Section 1005 of the Senior Indenture). “Voting Stock” means
stock of the class or classes having a general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of a corporation (irrespective of whether or not at the time stock of any other
class or classes shall have or might have voting power by reason of the happening of any contingency). (Section 101 of the Senior Indenture).
Defaults
The
Senior Indenture
The Senior Indenture defines an Event of Default with respect to any series of Senior Debt Securities
as any one of the following events:
| |
• |
|
default for 30 days in payment of interest on any Senior Debt Security of that series; |
| |
• |
|
default in payment of principal of (or premium, if any, on) any Senior Debt Security of that series at Maturity; |
| |
• |
|
default in the deposit of any sinking fund payment, when and as due by the terms of a Senior Debt Security of that series;
|
| |
• |
|
default in the performance, or breach, of any covenant or warranty of the Company in the Senior Indenture or any Senior Debt Security of that series
(other than a covenant or warranty solely for the benefit of Senior Debt Securities other than Senior Debt Securities of that series) and continuance of such default or breach for 90 days after due notice; |
| |
• |
|
certain events of bankruptcy, insolvency or reorganization of the Company; and |
| |
• |
|
any other Event of Default provided with respect to Senior Debt Securities of that series. (Section 501). |
If an Event of Default (other than certain events of bankruptcy, insolvency or reorganization of the Company) occurs with respect to the
Senior Debt Securities of any series, the Trustee or holders of 25% of the outstanding principal amount of that series may declare the principal amount of all Senior Debt Securities of that series (or in the case of any Senior Debt Security of that
series which specifies an amount to be due and payable thereon upon acceleration of its maturity, such amount as may be specified by the terms of such Senior Debt Security) of the series immediately payable. However, upon certain conditions such
declaration may be annulled, and past defaults (except, unless theretofore cured, a default in payment of principal of (or premium, if any, on) or interest, if any, on the Senior Debt Securities of that series and certain other specified defaults)
may be waived, by the holders of a majority in principal amount of the outstanding Senior Debt Securities of any series on behalf of the holders of all Senior Debt Securities of such series.
15
If an Event of Default occurs resulting from certain events of bankruptcy, insolvency or
reorganization of the Company occurs with respect to the Senior Debt Securities of any series, the principal amount of all the Senior Debt Securities of that series (or in the case of any Senior Debt Security of that series which specifies an amount
to be due and payable thereon upon acceleration of its maturity, such amount as may be specified by the terms of such Senior Debt Security) will automatically, and without any declaration or other action on the part of the Trustee or any holder,
become immediately due and payable. (Sections 502 and 513).
The Senior Subordinated Indenture
The Senior Subordinated Indenture defines an Event of Default with respect to any series of Senior Subordinated Debt Securities as being
certain events involving the bankruptcy, insolvency or reorganization of the Company and any other Event of Default provided with respect to Senior Subordinated Debt Securities of that series. (Section 501).
If an Event of Default occurs with respect to the Senior Subordinated Debt Securities of any series, the principal amount of all the
Senior Subordinated Debt Securities of that series (or in the case of any Senior Subordinated Debt Security of that series which specifies an amount to be due and payable thereon upon acceleration of its maturity, such amount as may be specified by
the terms of such Senior Subordinated Debt Security) will automatically, and without any declaration or other action on the part of the Trustee or any holder, become immediately due and payable. (Sections 502 and 513).
The Senior Subordinated Indenture defines a Default with respect to Senior Subordinated Debt Securities of any series as any one of the
following events:
| |
• |
|
an Event of Default with respect to that series; |
| |
• |
|
default for 30 days in payment of interest on any Senior Subordinated Debt Security of that series; |
| |
• |
|
default in payment of principal of (or premium, if any, on) any Senior Subordinated Debt Security of that series at Maturity;
|
| |
• |
|
default in the deposit of any sinking fund payment, when and as due by the terms of a Senior Subordinated Debt Security of that series;
|
| |
• |
|
default in the performance, or breach, of any covenant or warranty of the Company in the Senior Subordinated Indenture or any Senior Subordinated Debt
Security of that series (other than a covenant or warranty solely for the benefit of Senior Subordinated Debt Securities other than Senior Subordinated Debt Securities of that series) and continuance of such default or breach for 90 days after due
notice; or |
| |
• |
|
any other Default provided with respect to Senior Subordinated Debt Securities of that series. |
In case a Default shall occur and be continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the
rights of the holders by appropriate judicial proceedings as the Trustee deems most effectual.
The Indentures
The Indentures provide that, if a default occurs with respect to Debt Securities of any series, within 90 days after
the receipt by the applicable Trustee of written notice of a default, the applicable trustee will deliver to the holders of Debt Securities of that series notice of such default if uncured and not waived as and to the extent provided by the Trust
Indenture Act; provided that, except in the case of a default in the payment of the principal of (or premium, if any, on) or interest, if any, on any Debt Security of such series or payment of any sinking fund installment with respect to the Debt
Securities of such series the Trustee will be protected in withholding such notice if and so long as it in good faith determines that the withholding of notice is in the best interest of the
16
holders of the Debt Securities of such series. In addition, under the Senior Indenture, such notice shall not be given until 90 days after the occurrence of a default with respect to outstanding
Senior Debt Securities of any series or breach of a covenant in the Senior Indenture (other than for a default in the payment of the principal of (or premium, if any, on) or interest, if any, on any Senior Debt Security of such series or payment of
any sinking fund installment with respect to the Senior Debt Securities of such series. The term default with respect to any series of outstanding Debt Securities for the purpose only of this provision means the happening of any of the Events of
Default (or any event which, or after notice or lapse of time or both would become, an Event of Default) or, in the case of the Senior Subordinated Indenture, Defaults, specified in the Applicable Indenture and relating to such series of outstanding
Debt Securities. (Section 602).
The Indentures provide that, subject to the duty of the Trustees during a default to act with
the required standard of care, the Trustees will not be under an obligation to exercise any of their rights or powers under the Indentures at the request or direction of any of the holders, unless such holders shall have offered to the Trustees
reasonable security or indemnity. (Sections 601 and 603). The Indentures provide that the holders of a majority in principal amount of outstanding Debt Securities of any series may direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee for that series, or exercising any trust or other power conferred on such Trustee, provided that such Trustee may decline to act if such direction is contrary to law or the Applicable Indenture and may take any
other action deemed proper which is not inconsistent with such direction. (Section 512).
Modification of the Indentures
From time to time the Company and the applicable Trustee may, without the consent of the holders of any series of Debt Securities, amend,
waive or supplement each Indenture for specified purposes, including, among other things:
| |
• |
|
evidencing the succession of another person to the Company and the assumption by any such successor of the covenants of the Company;
|
| |
• |
|
adding to the covenants of the Company for the benefit of the holders of all or any Debt Securities of any series; |
| |
• |
|
conveying, transferring, assigning, mortgaging or pledging any property to or with the Trustee, or securing the Debt Securities of any series, or
providing for guarantees of the Debt Securities of any series; |
| |
• |
|
surrendering any right or power conferred on the Company in the Applicable Indenture with respect to the Debt Securities of any series;
|
| |
• |
|
adding any additional Events of Default for the benefit of the holders of all or a Debt Securities of any series, and, under the Senior Subordinated
Debt Indenture, adding additional Defaults for the benefit of all or any Senior Subordinated Debt Securities of any series; |
| |
• |
|
adding or changing any provisions to permit or facilitate the issuance of Debt Securities in bearer form, or to permit or facilitate the issuance of
Debt Securities in uncertificated form; |
| |
• |
|
adding to, changing or eliminating any of the provisions of the Indentures (including, without limitation, the covenants and Events of Default and
Defaults (as applicable)), provided that any such addition, change or elimination shall not apply to any outstanding Debt Securities nor modify the rights of any holder of any such outstanding Debt Securities, or shall become effective only when
there is no Debt Security outstanding of any series created prior to the execution of the supplemental indenture that is entitled to the benefit of such provision; |
| |
• |
|
establishing the form or terms of Debt Securities of any series; |
| |
• |
|
evidencing and providing for the acceptance of appointment under the Indentures by a successor Trustee with respect to the Debt Securities of one or
more series and adding to or changing any of the provisions of the Indentures as shall be necessary to provide for or facilitate the administration of the trusts under the Indentures by more than one Trustee; |
17
| |
• |
|
complying with the requirements of the Securities and Exchange Commission in order to effect or maintain the qualification of this Indenture under the
Trust Indenture Act; |
| |
• |
|
adding to or changing any of the provisions of the Indentures with respect to any Debt Securities that by their terms may be converted into securities
or other property other than Debt Securities of the same series and of like tenor, in order to permit or facilitate the issuance, payment or conversion of such Debt Securities; |
| |
• |
|
complying with the rules of any applicable depositary; |
| |
• |
|
supplementing any of the provisions in the applicable Indenture to such extent as will be necessary to permit or facilitate the defeasance and
discharge or covenant defeasance of any Debt Securities provided, in each case, that any such action shall not adversely affect the interests of the holders of Debt Securities or any other Debt Securities in any material respect; or
|
| |
• |
|
curing an ambiguity, correcting or supplementing any provision of the Applicable Indenture which may be defective or inconsistent with any other
provision thereof, or making any other provisions with respect to matters or questions arising under the Applicable Indenture, not adversely affecting the interests of the holders of record of any Debt Securities in any material respect.
|
In addition, modification and amendments of each Indenture may be made by the Company and the Trustee under
the Applicable Indenture, with the consent of the holders of not less than a majority in principal amount of each series of outstanding Debt Securities issued under such Indenture and affected thereby, by executing supplemental indentures adding any
provisions to or changing or eliminating any of the provisions of the Applicable Indenture or modifying the rights of the holders of outstanding Debt Securities of such series, except that no such supplemental indenture may:
| |
• |
|
change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Debt Security; |
| |
• |
|
reduce the principal amount of, or any premium or the rate of interest on, any Debt Security; |
| |
• |
|
reduce the amount of principal of an original issue discount Debt Security or any other Security which would be payable upon acceleration of the
Maturity thereof; |
| |
• |
|
adversely affect any right of repayment at the option of the holder of any Debt Security; |
| |
• |
|
reduce the amount of, or postpone the date fixed for, the payment of any sinking fund or analogous obligation; |
| |
• |
|
change the place or currency of payment of principal of (or premium, if any, on) or interest, if any, on, any Debt Security;
|
| |
• |
|
impair the right to institute suit for the enforcement of any payment on or with respect to any Debt Security on or after the Stated Maturity (or, in
the case of redemption, on or after the Redemption Date); |
| |
• |
|
if any Debt Security provides that the holder may require the Company to convert such Debt Security, impair such holder’s right to require
conversion of such Debt Security on the terms provided therein; |
| |
• |
|
reduce the percentage in principal amount of any outstanding Debt Securities, the consent of whose holders is required for modification or amendment of
the Applicable Indenture, for waiver of compliance with certain provisions of the Applicable Indenture or for waiver of certain covenant defaults; |
| |
• |
|
modify the provisions of the Applicable Indenture relating to modification and amendment of the Applicable Indenture; or |
| |
• |
|
in the case of the Senior Subordinated Indenture, modify the subordination provisions adverse to the holders of Senior Indebtedness, in each case,
without such holders’ consent. |
18
The Indentures provide, however, that each of the amendments and modifications listed in the
first ten items above and, in the case of the Senior Subordinated Indenture the eleventh item above, may be made with respect to all or any specific Debt Securities of any series with the consent of the holder of each outstanding Debt Security
affected thereby. (Section 902 of the Indentures and Section 907 of the Senior Subordinated Indenture).
Consolidation, Merger and
Sale of Assets
The Company, without the consent of the holders of any of the Debt Securities under either of the
Indentures, may consolidate with or merge into any other Person or convey, transfer or lease its assets substantially as an entirety to any Person, or permit any Person to consolidate with or merge into the Company, provided that:
| |
• |
|
if applicable, the successor is a Person organized under the laws of the United States, any State thereof or the District of Columbia;
|
| |
• |
|
the successor Person, if other than the Company, assumes the Company’s obligations on the Debt Securities and under the Indentures;
|
| |
• |
|
after giving effect to the transaction no Event of Default, or, in the case of the Senior Subordinated Indenture, Default, and no event which, after
notice or lapse of time, would become an Event of Default, or, in the case of the Senior Subordinated Indenture, Default, shall have occurred and be continuing; and |
| |
• |
|
certain other conditions are met. (Section 801). |
Upon any consolidation or merger into any other Person or any conveyance, transfer or lease of the Company’s assets substantially as an entirety to any Person, the successor Person shall succeed to,
and be substituted for, the Company under the Indentures, and the Company, except in the case of a lease, shall be relieved of all obligations and covenants under the Indentures and the Debt Securities to the extent it was the predecessor Person.
Our Relationships with the Trustees
Deutsche Bank Trust Company Americas is the trustee under the Senior Indenture. Wilmington Trust, National Association is the trustee under the Senior Subordinated Indenture. We and certain of our
subsidiaries, including The Bank of New York Mellon, maintain banking relations with the trustees in the ordinary course of business.
In addition, affiliates of Deutsche Bank Trust Company Americas have underwritten our securities from time to time in the past and may underwrite our securities from time to time in the future. Such
Trustee may have to resign if a default occurs with respect to the Senior Debt Securities within one year after any offering of our securities underwritten by an affiliate of such Trustee, such as Deutsche Bank Securities Inc., since such Trustee
would likely be considered to have a conflicting interest for purposes of the Trust Indenture Act of 1939. In that event, except in very limited circumstances, such Trustee would be required to resign as Trustee under the Senior Indenture and we
would be required to appoint a successor trustee, unless the default is cured or waived within 90 days. During the period of time until a successor is appointed, such Trustee will have both (a) duties to holders of Debt Securities under the
Senior Indenture and (b) a conflicting interest under the Senior Indenture for purposes of the Trust Indenture Act.
In
addition, each applicable Trustee can resign for any reason with 30 days’ notice, and we would be required to appoint a successor trustee. If within one year of such resignation, no successor Trustee has been appointed by the Company the
holders of a majority in principal of the outstanding amount of Debt Securities of such series may appoint a successor Trustee. If no applicable successor Trustee with respect to the Debt Securities of any series is appointed by the Company or the
holders of Debt Securities of such series, a holder of Debt Securities of such series who has been a bona fide holder for at least six months may, on behalf of himself
19
or herself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Debt Securities of such series. If the
applicable Trustee resigns following a default or for any other reason, it may be difficult to identify and appoint a qualified successor trustee. The applicable Trustee will remain the trustee under the Applicable Indenture until a successor is
appointed.
Outstanding Debt Securities
The Indentures provide that, in determining whether the holders of the requisite principal amount of outstanding Debt Securities have given, made or taken any request, demand, authorization, direction,
notice, consent, waiver or other action under the Applicable Indenture, as of any date:
| |
• |
|
the portion of the principal amount of an original issue discount Debt Security that shall be deemed to be outstanding for such purposes shall be that
portion of the principal amount thereof that would be due and payable as of such date upon the declaration of acceleration of the maturity thereof upon the occurrence and continuance of an Event of Default; |
| |
• |
|
if, as of such date, the principal amount payable at the maturity of a Debt Security is not determinable, the principal amount of such Debt Security
that will be deemed to be outstanding will be the amount as specified or determined as contemplated by Section 301 of the Applicable Indenture; |
| |
• |
|
the portion of the principal amount of a Debt Security denominated in one or more foreign currencies, composite currencies or currency units that shall
be deemed to be outstanding for such purpose shall be the U.S. dollar equivalent, determined on such date as contemplated by Section 301 of the Applicable Indenture, of the principal amount of such Debt Security (or, in the case of an original
issue discount Debt Security, the amount determined as provided in the two items immediately above); and |
| |
• |
|
Debt Securities owned by the Company or any other obligor upon the Debt Securities or any Affiliate of the Company or of such other obligor shall not
be deemed to be outstanding. (Section 101). |
Governing Law
The Indentures are, and the Debt Securities will be, governed by and construed in accordance with the laws of the State of New York.
Waiver of Jury Trial
Under the Indentures, each of the Company, the Trustees and the holders of the Debt Securities irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in
any legal proceeding arising out of or relating to the applicable Indenture, the Debt Securities or the transactions contemplated thereby.
20
DESCRIPTION OF PREFERRED STOCK
Summary
The following
summary contains a description of certain general terms of the Preferred Stock of the Company. The particular terms of any series of Preferred Stock will be contained in a prospectus supplement. The prospectus supplement will describe the following
terms of the Preferred Stock:
| |
• |
|
the specific title and stated value; |
| |
• |
|
number of shares or fractional interests therein; |
| |
• |
|
any dividend, liquidation, redemption, voting and other rights; |
| |
• |
|
the terms for conversion into Common Stock or other preferred stock or for exchange for Common Stock or Debt Securities; |
| |
• |
|
the securities exchanges, if any, on which such Preferred Stock is to be listed; and |
| |
• |
|
the initial public offering price, and the number of shares, if any, to be purchased by the underwriters. |
The terms of any series of Preferred Stock being offered may differ from the terms set forth below. If the terms differ, those terms will
also be disclosed in the prospectus supplement relating to that series of Preferred Stock. The following summary is not complete. You should refer to the Certificate of Designations relating to the series of the Preferred Stock, the applicable
provisions of the Company’s Restated Certificate of Incorporation, the Company’s Amended and Restated By-Laws and the Delaware General Corporation Law for a complete statement of the terms and rights of that series of Preferred Stock. That
Certificate of Designations will be filed with the SEC promptly after the offering of the series of Preferred Stock.
General
Under the Company’s Restated Certificate of Incorporation, the Company is authorized to issue up to 3,600,000,000
shares of capital stock of which 3,500,000,000 shares shall be Common Stock par value $0.01 per share, and 100,000,000 shares shall be Preferred Stock (the “Preferred Stock”), par value $0.01 per share. The Preferred Stock may be issued in
one or more series and the Company’s Board of Directors will have the power to fix various terms with respect to each series, including voting powers, designations, preferences and relative, participating, optional and/or other special rights,
and the qualifications, limitations and restrictions thereof. The holders of the Company’s Common Stock are not entitled to preemptive rights with respect to any shares which may be issued.
In the event of liquidation, dissolution or winding up of the Company, the holders of Common Stock would be entitled to receive, after
payment or provision for payment of all of its debts and liabilities, all of the assets of the Company available for distribution. The holders of the Company’s Preferred Stock, if any, may have a priority over the holders of the Company’s
Common Stock in the event of liquidation or dissolution.
Rank
Any series of Preferred Stock will, with respect to dividend rights and rights on liquidation, winding up and dissolution rank (i) senior to all classes of common stock of the Company and all equity
securities issued by the Company, the terms of which specifically provide that such equity securities will rank junior to the Preferred Stock (collectively referred to as the “Junior Securities”); (ii) on a parity with all equity
securities issued by the Company, the terms of which specifically provide that such equity securities will rank on a parity with the Preferred Stock (collectively referred to as the “Parity Securities”); and (iii) junior to all equity
securities issued by the Company, the terms of which specifically provide that such equity securities will rank senior to the Preferred Stock. All shares of Preferred Stock will, regardless of series, be of equal rank. As used in any Certificate of
Designations for these purposes, the term “equity securities” will not include Debt Securities convertible into or exchangeable for equity securities.
21
In addition, the Preferred Stock may be fully subordinate to interests held by the U.S.
government in the event we enter into a receivership, insolvency, liquidation or similar proceeding, including a proceeding under the “orderly liquidation authority” provisions of the Dodd-Frank Act.
Dividends
Holders of
each series of Preferred Stock will be entitled to receive, when, as and if declared by the Board of Directors of the Company out of funds legally available therefor, cash dividends at such rates and on such dates as are set forth in the prospectus
supplement relating to such series of Preferred Stock. Dividends will be payable to holders of record of Preferred Stock as they appear on the books of the Company (or, if applicable, the records of the Depositary referred to below under
“Description of Depositary Shares”) on such record dates as shall be fixed by the Board of Directors. Dividends on any series of Preferred Stock may be cumulative or non-cumulative.
The Company’s ability to pay dividends on its Preferred Stock is subject to policies established by the Federal Reserve. See
“Management’s Discussion and Analysis of Financial Condition and Results of Operations—Supervision and Regulation—Capital Planning and Stress Testing—Payment of Dividends, Stock Repurchases and Other Capital
Distributions” in our 2014 Annual Report to Shareholders, and Part I, “Item 1. Business—Supervision and Regulation” in our Annual Report on Form 10-K for the year ended December 31, 2014, both of which are incorporated
herein by reference (and similar items in any of our annual, quarterly or current reports that we file with the SEC in the future and that are incorporated by reference in this prospectus).
No full dividends may be declared or paid or funds set apart for the payment of dividends on any Parity Securities unless dividends shall
have been paid or set apart for such payment on the Preferred Stock. If full dividends are not so paid, the Preferred Stock shall share dividends pro rata with the Parity Securities.
Conversion
The prospectus supplement for any series of Preferred Stock
will state the terms, if any, on which shares of that series are convertible into shares of another series of Preferred Stock or Common Stock.
For any series of Preferred Stock that is convertible, the Company will at all times reserve and keep available, free from preemptive rights, out of the aggregate of its authorized but unissued Preferred
Stock or Common Stock, as the case may be, or shares held in its treasury or both, for the purpose of effecting the conversion of the shares of such series of Preferred Stock, the full number of shares of Preferred Stock or Common Stock, as the case
may be, then deliverable upon the conversion of all outstanding shares of such series.
No fractional shares or scrip
representing fractional shares of Preferred Stock or Common Stock will be issued upon the conversion of shares of any series of convertible Preferred Stock. Each holder to whom fractional shares would otherwise be issued will instead be entitled to
receive, at the Company’s election, either (a) a cash payment equal to the current market price of such holder’s fractional interest or (b) a cash payment equal to such holder’s proportionate interest in the net proceeds
(following the deduction of applicable transaction costs) from the sale promptly by an agent, on behalf of such holders, of shares of Preferred Stock or Common Stock, as the case may be, representing the aggregate of such fractional shares.
The holders of any series of shares of Preferred Stock at the close of business on a dividend payment record date will be
entitled to receive the dividend payable on such shares (except that holders of shares called for redemption on a redemption date occurring between such record date and the dividend payment date shall not be entitled to receive such dividend on such
dividend payment date but instead will receive accrued and unpaid dividends to such redemption date) on the corresponding dividend payment date notwithstanding the conversion thereof or the Company’s default in payment of the dividend due.
Except as provided above, the Company will make no payment or allowance for unpaid dividends, whether or not in arrears, on converted shares or for dividends on the shares of Preferred Stock or Common Stock issued upon conversion.
22
Exchangeability
The holders of shares of Preferred Stock of any series may be obligated at any time or at a specified time or times to exchange such shares for Common Stock or Debt Securities of the Company. The terms of
any such exchange and any such Debt Securities will be described in the prospectus supplement relating to such series of Preferred Stock.
Redemption
A series of
Preferred Stock may be redeemable at any time or at a specified time or times, in whole or in part, at the option of the Company or the holder thereof upon terms and at the redemption prices set forth in the prospectus supplement relating to such
series.
In the event of partial redemptions of Preferred Stock, whether by mandatory or optional redemption, the shares to be
redeemed will be determined by lot or pro rata, as may be determined by the Board of Directors of the Company or by any other method determined to be equitable by the Board of Directors.
On and after a redemption date, unless the Company defaults in the payment of the redemption price, dividends will cease to accrue on
shares of Preferred Stock called for redemption and all rights of holders of such shares will terminate except for the right to receive the redemption price.
Our right to redeem the Preferred Stock once issued is subject to the prior approval of the Federal Reserve or any successor appropriate federal banking agency as required under the capital rules
applicable to us. We cannot assure you that the Federal Reserve or any successor appropriate federal banking agency will approve any redemption of the Preferred Stock that we may propose. Moreover, unless the Federal Reserve authorizes us to do
otherwise in writing, we will redeem the Preferred Stock only if it is replaced with other Tier 1 capital that is not a restricted core capital element—for example, common stock or another series of noncumulative perpetual preferred stock.
Under the capital adequacy rules currently applicable to us, prior to exercising our right to redeem the Preferred Stock, we
must either (i) demonstrate to the satisfaction of the Federal Reserve that, following redemption, we will continue to hold capital commensurate with our risk; or (ii) replace the Preferred Stock redeemed or to be redeemed with an equal
amount of instruments that will qualify Tier 1 capital under regulations of the Federal Reserve immediately following or concurrent with redemption.
Liquidation Preference
Upon any voluntary or involuntary liquidation,
dissolution or winding up of the Company, holders of each series of Preferred Stock that ranks senior to the Junior Securities will be entitled to receive out of assets of the Company available for distribution to shareholders, before any
distribution is made on any Junior Securities, including Common Stock, distributions upon liquidation in the amount set forth in the prospectus supplement relating to such series of Preferred Stock, plus an amount equal to any accrued and unpaid
dividends. If upon any voluntary or involuntary liquidation, dissolution or winding up of the Company, the amounts payable with respect to the Preferred Stock of any series and any other Parity Securities are not paid in full, the holders of the
Preferred Stock of such series and the Parity Securities will share ratably in any such distribution of assets of the Company in proportion to the full liquidation preferences to which each is entitled. After payment of the full amount of the
liquidation preference to which they are entitled, the holders of such series of Preferred Stock will not be entitled to any further participation in any distribution of assets of the Company.
Voting Rights
Except as
indicated below or in the prospectus supplement relating to a particular series of Preferred Stock or except as expressly required by applicable law, the holders of shares of Preferred Stock will have no voting rights.
23
Under the Federal Reserve’s regulations implementing the Bank Holding Company Act, if
any holder of any series of preferred stock is or becomes entitled to vote for the election of directors, such series will be deemed a class of voting securities and a company holding 25% or more of the series, or 5% or more if it otherwise
exercises a “controlling influence” over the issuer, will be subject to regulation as a bank holding company under the Bank Holding Company Act. In addition, at the time the series is deemed a class of voting securities, any other bank
holding company will be required to obtain the approval of the Federal Reserve under the Bank Holding Company Act to acquire or maintain more than 5% of that series. Any other person (other than the bank holding company) will be required to obtain
the non-objection of the Federal Reserve under the Change in Bank Control Act of 1978, as amended, to acquire or maintain 10% or more of that series.
24
DESCRIPTION OF DEPOSITARY SHARES
The following summary is not complete. You should refer to the applicable provisions of the forms of the Company’s Deposit Agreement
and Depositary Receipt relating to the Preferred Stock for a complete statement of the terms and rights of the Depositary Shares. The following description and any description of the Deposit Agreement, Depositary Receipt and Depositary Shares 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 Depositary Agreement and form of Depositary Receipt, which we will file with the SEC (and incorporate by
reference as an exhibit to the registration statement of which this prospectus forms a part) in connection with the offering of Depositary Shares.
General
The Company may, at its option, elect to offer fractional shares
of Preferred Stock, rather than full shares of Preferred Stock. In the event such option is exercised, the Company will issue Depositary Receipts, each of which will represent a fraction (to be set forth in the prospectus supplement relating to a
particular series of Preferred Stock) of a share of a particular series of Preferred Stock as described below.
The shares of
any series of Preferred Stock represented by Depositary Shares will be deposited under a Deposit Agreement (the “Deposit Agreement”) between the Company and a bank or trust company selected by the Company having its principal office in the
United States and having a combined capital and surplus of at least $50,000,000 (the “Depositary”). Subject to the terms of the Deposit Agreement, each owner of a Depositary Share will be entitled, in proportion to the applicable fraction
of a share of Preferred Stock represented by such Depositary Share, to all the rights and preferences of the Preferred Stock represented thereby (including dividend, voting, redemption, conversion and liquidation rights).
The Depositary Shares will be evidenced by depositary receipts issued pursuant to the Deposit Agreement (the “Depositary
Receipts”). Depositary Receipts will be distributed to those persons purchasing the fractional shares of Preferred Stock in accordance with the terms of the offering.
Pending the preparation of definitive Depositary Receipts, the Depositary may, upon the written order of the Company or any holder of deposited Preferred Stock, execute and deliver temporary Depositary
Receipts which are substantially identical to, and entitle the holders thereof to all the rights pertaining to, the definitive Depositary Receipts. Definitive Depositary Receipts will be prepared thereafter without unreasonable delay, and temporary
Depositary Receipts will be exchangeable for definitive Depositary Receipts at the Company’s expense.
Dividends and Other
Distributions
The Depositary will distribute all cash dividends or other cash distributions received in respect of the
deposited Preferred Stock to the record holders of Depositary Shares relating to such Preferred Stock in proportion to the numbers of such Depositary Shares owned by such holders, when, as and if declared by the Board of Directors of the Company.
In the event of a distribution other than in cash, the Depositary will distribute property received by it to the record
holders of Depositary Shares entitled thereto. If the Depositary determines that it is not feasible to make such distribution, it may, with the approval of the Company, sell such property and distribute the net proceeds from such sale to such
holders.
Redemption or Exchange of Stock
If a series of Preferred Stock represented by Depositary Shares is to be redeemed or exchanged, the Depositary Shares will be redeemed from the proceeds received by the Depositary resulting from the
redemption, in whole or in part, of such series of Preferred Stock held by the Depositary, or exchanged for the Common Stock
25
or Debt Securities to be issued in exchange for the Preferred Stock (as the case may be, in accordance with the terms of such series of Preferred Stock). The Depositary Shares will be redeemed or
exchanged by the Depositary at a price per Depositary Share equal to the applicable fraction of the redemption price per share or market value of Common Stock or Debt Securities per Depositary Share paid in respect of the shares of Preferred Stock
so redeemed or exchanged. Whenever the Company redeems or exchanges shares of Preferred Stock held by the Depositary, the Depositary will redeem or exchange as of the same date the number of Depositary Shares representing shares of Preferred Stock
so redeemed or exchanged. If fewer than all the Depositary Shares are to be redeemed or exchanged, the Depositary Shares to be redeemed or exchanged will be selected by the Depositary by lot or pro rata or by any other equitable method as may be
determined by the Company.
Withdrawal of Stock
Any holder of Depositary Shares may, upon surrender of the Depositary Receipts at the corporate trust office of the Depositary (unless the related Depositary Shares have previously been called for
redemption), receive the number of whole shares of the related series of Preferred Stock and any money or other property represented by such Depositary Receipts. Holders of Depositary Shares making such withdrawals will be entitled to receive whole
shares of Preferred Stock on the basis set forth in the related prospectus supplement for such series of Preferred Stock, but holders of such whole shares of Preferred Stock will not thereafter be entitled to deposit such Preferred Stock under the
Deposit Agreement or to receive Depositary Receipts therefor. If the Depositary Shares surrendered by the holder in connection with such withdrawal exceed the number of Depositary Shares that represent the number of whole shares of Preferred Stock
to be withdrawn, the Depositary will deliver to such holder at the same time a new Depositary Receipt evidencing such excess number of Depositary Shares.
Voting Deposited Preferred Stock
Upon receipt of notice of any meeting at
which the holders of any series of deposited Preferred Stock are entitled to vote, the Depositary will mail the information contained in such notice of meeting to the record holders of the Depositary Shares relating to such series of Preferred
Stock. Each record holder of such Depositary Shares on the record date (which will be the same date as the record date for the relevant series of Preferred Stock) will be entitled to instruct the Depositary as to the exercise of the voting rights
pertaining to the amount of the Preferred Stock represented by such holder’s Depositary Shares. The Depositary will endeavor, insofar as practicable, to vote the amount of such series of Preferred Stock represented by such Depositary Shares in
accordance with such instructions, and the Company will agree to take all reasonable actions which may be deemed necessary by the Depositary in order to enable the Depositary to do so. The Depositary will abstain from voting shares of the Preferred
Stock to the extent it does not receive specific instructions from the holder of Depositary Shares representing such Preferred Stock.
Conversion Rights of Convertible Depositary Shares
Any holder of Depositary Shares which are convertible into Common Stock or into shares of another series of Preferred Stock, upon surrender of the Depositary Receipts therefor and delivery of instructions
to the Depositary, may cause the Company to convert any specified number of whole or fractional shares of Preferred Stock represented by the Depositary Shares into the number of whole shares of Common Stock or Preferred Stock (as the case may be, in
accordance with the terms of such series of the Preferred Stock) of the Company obtained by dividing the aggregate liquidation preference of such Depositary Shares by the Conversion Price (as such term is defined in the Certificate of Designations)
then in effect, as such Conversion Price may be adjusted by the Company from time to time as provided in the Certificate of Designations. In the event that a holder delivers Depositary Receipts to the Depositary for conversion which in the aggregate
are convertible either into less than one whole share of such Common Stock or Preferred Stock or into any number of whole shares of such Common Stock or Preferred Stock plus an excess constituting less than one whole share of such Common Stock or
Preferred Stock, the holder shall receive payment in lieu of such fractional share.
26
Amendment and Termination of the Deposit Agreement
The form of Depositary Receipt evidencing the Depositary Shares and any provision of the Deposit Agreement may at any
time be amended by agreement between the Company and the Depositary. However, any amendment which materially and adversely alters the rights of the holders of Depositary Shares representing Preferred Stock of any series will not be effective unless
such amendment has been approved by the holders of at least 66 2/3% of the Depositary Shares then outstanding representing Preferred Stock of such series. Every holder of an outstanding
Depositary Receipt at the time any such amendment becomes effective, or any transferee of such holder, shall be deemed, by continuing to hold such Depositary Receipt, or by reason of the acquisition thereof, to consent and agree to such amendment
and to be bound by the Deposit Agreement as amended thereby. The Deposit Agreement may be terminated immediately and without notice if (i) all outstanding Depositary Shares have been redeemed; or (ii) if applicable, each share of Preferred
Stock has been converted into Common Stock or Preferred Stock or has been exchanged for Common Stock or Debt Securities; or (iii) there has been a final distribution in respect of the Preferred Stock in connection with any liquidation,
dissolution or winding up of the Company and such distribution has been distributed to the holders of Depositary Shares; or (iv) with the consent of the holders of at least 66 2/3% of the Depositary Shares then outstanding representing Preferred Stock of such series; or (v) the Depositary materially breaches any of its obligations with regard to the treatment of personal
information (as defined in the Depositary Agreement).
Charges of Depositary
The Company will pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary
arrangements. The Company will pay all charges of the Depositary in connection with the initial deposit of the relevant series of Preferred Stock and any redemption or exchange of such Preferred Stock. Holders of Depositary Receipts will pay other
transfer and other taxes and governmental charges and such other charges or expenses 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 the Company notice of its election to do so, and the Company may at any time remove the Depositary, any such resignation or removal to take effect upon the appointment of a successor Depositary and its acceptance of
such appointment. Such 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.
Miscellaneous
The Depositary will forward all reports and communications from the Company which are delivered to the Depositary and which the Company is required to furnish to the holders of the deposited Preferred
Stock.
Neither the Depositary nor the Company will be liable if it is prevented or delayed by law or any circumstance beyond
its control in performing its obligations under the Deposit Agreement. The obligations of the Company and the Depositary under the Deposit Agreement will be limited to performance in good faith of their duties thereunder and they will not
be obligated to prosecute or defend any legal proceeding in respect of any Depositary Shares, Depositary Receipts or shares of Preferred Stock unless satisfactory indemnity is furnished. They may rely upon written advice of counsel or accountants,
or upon information provided by holders of Depositary Receipts or other persons believed to be competent and on documents believed to be genuine.
27
DESCRIPTION OF COMMON STOCK
General
We may issue
Common Stock, separately or together with or upon conversion of or in exchange for other Company securities, all as set forth in a prospectus supplement. The following summary is not complete. You should refer to the applicable provisions of the
Company’s Restated Certificate of Incorporation and Amended and Restated By-Laws, and to the Delaware General Corporation Law (“DGCL”) for a complete statement of the terms and rights of the Common Stock.
The Company is authorized to issue 3,500,000,000 shares of Common Stock, par value $0.01 per share. The Common Stock is listed on the New
York Stock Exchange under the symbol “BK.”
The applicable prospectus supplement will describe the terms of the
Common Stock including, where applicable, the following:
| |
• |
|
the number of shares to be offered; |
| |
• |
|
the offering price; and |
| |
• |
|
any additional terms of the Common Stock which are not inconsistent with the provisions of the Company’s Restated Certificate of Incorporation.
|
The Common Stock will be, when issued against payment therefor, fully paid and nonassessable. The rights of
holders of Common Stock will be subject to, and may be adversely affected by, the rights of holders of any Preferred Stock that has been issued and may be issued in the future.
Dividends
The holders of the Common Stock of the Company are entitled to
receive dividends, when, as and if declared by the Board of Directors out of any funds legally available therefor, subject to the preferences applicable to any outstanding Preferred Stock.
The Company’s ability to pay dividends on its Common Stock:
| |
• |
|
depends primarily upon the ability of its subsidiaries, including The Bank of New York Mellon, BNY Mellon, N.A. and Pershing LLC, to pay dividends
or otherwise transfer funds to it, |
| |
• |
|
is also subject to policies established by the Federal Reserve. See “Management’s Discussion and Analysis of Financial Condition and Results
of Operations—Supervision and Regulation—Capital Planning and Stress Testing—Payment of Dividends, Stock Repurchases and Other Capital Distributions” in our 2014 Annual Report to Shareholders, which is incorporated by reference,
and Part I, “Item 1. Business—Supervision and Regulation” in our Annual Report on Form 10-K for the year ended December 31, 2014 (and similar items in any of our annual, quarterly or current reports that we file with the SEC
in the future and that are incorporated by reference in this prospectus), and |
| |
• |
|
will be prohibited, subject to certain restrictions, in the event that we do not declare and pay in full preferred dividends for the then-current
dividend period of our Series A preferred stock or the last preceding dividend period of our Series C preferred stock, Series D preferred stock and Series E preferred stock. |
Voting
Holders of Common Stock are entitled to one vote for each share
held on all matters as to which shareholders are entitled to vote. The holders of the Common Stock do not have cumulative voting rights.
28
Directors will be elected under a majority voting standard as opposed to a plurality voting
standard. Under a majority voting standard, a nominee for director is elected if the votes cast “for” such nominee’s election exceed the votes cast “against” such nominee’s election (with “abstentions” not
counted as a vote cast either “for” or “against” that director’s election). Under our Corporate Governance Guidelines, in an election of directors, any incumbent director who fails to receive more “for” votes than
“against” or “withhold” votes must promptly tender his or her resignation to the Lead Director (or such other director designated by the Board if the director failing to receive the majority of votes cast is the Lead Director)
promptly after the certification of the stockholder vote. The Lead Director will then refer the matter to the Corporate Governance and Nominating Committee. The Corporate Governance and Nominating Committee will promptly consider the resignation
submitted by such director and will recommend to the full Board whether to accept such resignation. The Corporate Governance and Nominating Committee will consider all factors that it deems relevant in making its recommendation, including the stated
reasons for “withhold” or “against” votes, the length of service and qualifications of the director, the director’s contributions to the Company, and the Company’s Corporate Governance Guidelines. A director who tenders
his or her resignation pursuant to the above-described Corporate Governance Guidelines will not vote on the issue of whether his or her tendered resignation will be accepted or rejected.
Liquidation Rights
Upon liquidation of the Company, holders of Common
Stock are entitled to receive pro rata the net assets of the Company after satisfaction in full of the prior rights of creditors (including holders of the Company’s Debt Securities) of the Company and holders of any Preferred Stock.
Miscellaneous
Holders
of Common Stock do not have any preferential or preemptive right with respect to any securities of the Company or any conversion rights. The Common Stock is not subject to redemption. The outstanding shares of Common Stock are fully paid and
non-assessable.
Computershare Shareowner Services LLC is the Transfer Agent, Registrar and Dividend Disbursement Agent for
the Common Stock of the Company.
Certain Provisions of Delaware Law and the Company’s Amended and Restated By-Laws
We are also subject to Section 203 of the DGCL. Section 203 prohibits us from engaging in any business combination (as defined
in Section 203) with an “interested stockholder” for a period of three years subsequent to the date on which the stockholder became an interested stockholder unless:
| |
• |
|
prior to such date, our board of directors approve either the business combination or the transaction in which the stockholder became an interested
stockholder; |
| |
• |
|
upon completion of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owns at least 85% of
the outstanding voting stock (with certain exclusions); or |
| |
• |
|
the business combination is approved by our board of directors and authorized by a vote (and not by written consent) of at least 66 2/3% of the outstanding voting stock not owned by the interested stockholder. |
For purposes of Section 203, an “interested stockholder” is defined as an entity or person beneficially owning 15% or more of our outstanding voting stock, based on voting power, and any
entity or person affiliated with or controlling or controlled by such an entity or person.
A “business combination”
includes mergers, asset sales and other transactions resulting in financial benefit to a stockholder. Section 203 could prohibit or delay mergers or other takeover or change of control attempts with respect to us and, accordingly, may
discourage attempts that might result in a premium over the market price for the shares held by stockholders.
29
Such provisions may have the effect of deterring hostile takeovers or delaying changes in
control of management or us.
Under the provisions of the statute, a corporation can expressly elect not to be governed by the
business combination provisions in its Restated Certificate of Incorporation or Amended and Restated By-Laws, but, as of the date of this prospectus, the Company has not done so. (DGCL § 203).
The Company’s Amended and Restated By-Laws establish an advance notice procedure with regard to nomination by stockholders of
candidates for election as directors and with regard to proposals by stockholders to be brought before a meeting of stockholders. In general, written notice must be received by the Secretary of the Company (i) in the case of an annual meeting,
not fewer than 90 days or more than 120 days before the anniversary date of the previous year’s proxy statement; provided, however, that in the event that the date of the annual meeting is more than 30 days from the anniversary date of the
previous year’s annual meeting, notice by the stockholder will be timely if it is received (A) on or before the later of (1) 120 calendar days before the date of the annual meeting at which such business is to be presented or such
election is to take place, as the case may be, or (2) 30 calendar days following the first public announcement by the Company of the annual meeting date and (B) not later than 15 calendar days prior to the scheduled mailing date of the
Company’s proxy materials for that annual meeting or (ii) in the case of a special meeting of stockholders at which directors are to be elected, not later than the close of business on the tenth calendar day following the earlier of the
day on which notice of the meeting date was mailed and the day on which public announcement of the meeting date was made.
The
notice associated with a stockholder nominee for the board of directors must also provide certain information set forth in the Company’s Amended and Restated By-Laws. Pursuant to Rule 14a-8 under the Exchange Act, the Board of Directors is not
required to nominate in the annual proxy statement any person so proposed. Compliance with this procedure would permit a stockholder to nominate the individual(s) at the stockholders meeting, and any stockholder may vote in person or by proxy for
any individual that stockholder desires. In addition, the Company’s Amended and Restated By-Laws permit a stockholder, or a group of up to 20 stockholders, owning 3% or more of the Company’s outstanding Common Stock continuously for
at least three years, to nominate and include in the Company’s proxy materials for an annual meeting directors constituting up to two individuals or 20% of the Board or Directors, whichever is greater, provided that the stockholder(s) and the
nominee(s) satisfy the requirements specified in the Amended and Restated By-Laws.
The advance notice of the
stockholder’s proposal must set forth a description of the business that the stockholder intends to bring before the meeting, including the text of the proposal, and certain information regarding the proposing stockholder, including the name
and address of the stockholder, the class and number of shares of the Company’s capital stock beneficially owned by each such stockholder, a representation that such stockholder will be a holder of record of the Company’s common stock who
is entitled to vote at the meeting on the date of the meeting and that such stockholder will appear in person or by proxy at the meeting to present such proposal(s), any material interest of the stockholder in the business proposed at the meeting
and information on hedging, derivative, or other similar transactions with respect to the Company’s securities or credit ratings.
Our Amended and Restated By-Laws provide stockholders holding an aggregate “net long position” (as defined in the Amended and Restated By-Laws) representing at least 20% of the outstanding
Common Stock of the Company the right to request that the Secretary of the Company call a special meeting of stockholders. The amendments also set forth the requirements and procedures of such a stockholder special meeting request, including with
respect to (i) when multiple requests will be considered together, (ii) the information required when submitting a request, (iii) limitations on when requests may be made, (iv) the time for holding a special meeting following a
request and (v) the appropriate scope of business at any meeting held pursuant to a request.
Our Amended and Restated
By-Laws also provide that vacancies on our board of directors may only be filled by a majority of directors then remaining in office, except that those vacancies resulting from removal from office by a vote of the stockholders may be filled by a
vote of the stockholders at the same meeting at which such removal occurs.
30
DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE
UNITS
Description of Stock Purchase Contracts
We may issue stock purchase contracts, representing contracts obligating holders to purchase from or sell to us, or obligating us to purchase from or sell to the holders, a specified or variable number of
shares of our Common Stock, Preferred Stock or Depositary Shares, as applicable, at a future date or dates. The price per share of Common Stock, Preferred Stock or per Depositary Share, as applicable, may be fixed at the time the stock purchase
contracts are issued or may be determined by reference to a specific formula contained in the stock purchase contracts. We may issue stock purchase contracts in such amounts and in as many distinct series as we wish. The stock purchase contracts may
be issued separately or as part of units, which we refer to in this prospectus as stock purchase units. Units may consist of a stock purchase contract and beneficial interests in other securities described in this prospectus or of third parties,
securing the holders’ obligations to purchase from or sell shares to us under the stock purchase contracts. These other securities may consist of debt securities, junior subordinated debentures, Preferred Stock, Common Stock or Depositary
Shares of the Company, trust preferred securities or debt obligations of third parties, including U.S. Treasury securities. The stock purchase contracts may require us to make periodic payments to the holders of the stock purchase contracts or vice
versa, and these payments may be unsecured or prefunded on some basis. The stock purchase contracts may require holders to secure their obligations under those contracts in a specified manner. Any stock purchase contract may include anti-dilution
provisions to adjust the number of shares issuable pursuant to such stock purchase contract upon the occurrence of certain events.
The applicable prospectus supplement may contain, where applicable, the following information about the stock purchase contracts issued under it:
| |
• |
|
whether the stock purchase contracts obligate the holder to purchase or sell, or both purchase and sell, our common stock, preferred stock or
depositary shares, as applicable, and the nature and amount of each of those securities, or the method of determining those amounts; |
| |
• |
|
whether the stock purchase contracts are to be prepaid or not; |
| |
• |
|
whether the stock purchase contracts are to be settled by delivery, or by reference or linkage to the value, performance or level of our common stock,
preferred stock or depositary shares; |
| |
• |
|
any acceleration, cancellation, termination or other provisions relating to the settlement of the stock purchase contracts;
|
| |
• |
|
whether the stock purchase contracts will be issued in fully registered or global form; and |
| |
• |
|
any other terms of the stock purchase contracts. |
Description of Stock Purchase Units
We may, from time to time, issue stock
purchase units comprised of one or more of the other securities described in this prospectus in any combination. Stock purchase units may also include debt obligations of third parties, such as U.S. Treasury securities. Each stock purchase 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 stock purchase unit will have the rights and obligations of a holder of each included security. The unit agreement under which a
stock purchase unit is issued may provide that the securities included in the unit may not be held or transferred separately, at any time or at any time before a specified date. The applicable prospectus supplement may describe:
| |
• |
|
the designation and terms of the stock purchase units and of the securities comprising the units, including whether and under what circumstances those
securities may be held or transferred separately; |
| |
• |
|
any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units; and
|
31
| |
• |
|
whether the units will be issued in fully registered or global form. |
The applicable prospectus supplement will describe the terms of any stock purchase units. 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 relevant unit agreement and, if applicable, collateral arrangements and depositary arrangements
relating to such units that we will file with the SEC in connection with the offering of stock purchase units.
32
DESCRIPTION OF WARRANTS
We may issue warrants to purchase debt securities, Preferred Stock, Depositary Shares or Common Stock. We may offer warrants separately
or together with one or more additional warrants, debt securities, Preferred Stock, Depositary Shares or Common Stock, or any combination of those securities in the form of units, as described in the applicable prospectus supplement. If we issue
warrants as part of a unit, the applicable 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 a prospectus supplement.
The applicable prospectus supplement will contain, where applicable, the following terms of and other information relating to the
warrants:
| |
• |
|
the specific designation and aggregate number of, and the price at which we will issue, the warrants; |
| |
• |
|
the currency or currency units in which the offering price, if any, and the exercise price are payable; |
| |
• |
|
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; |
| |
• |
|
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; |
| |
• |
|
any applicable material United States federal income tax consequences; |
| |
• |
|
the identity of the warrant agent for the warrants and of any other depositaries, execution or paying agents, transfer agents, registrars or other
agents; |
| |
• |
|
the proposed listing, if any, of the warrants or any securities purchasable upon exercise of the warrants on any securities exchange;
|
| |
• |
|
the designation and terms of the preferred stock or common stock purchasable upon exercise of the warrants; |
| |
• |
|
the designation, aggregate principal amount, currency and terms of the debt securities that may be purchased upon exercise of the warrants;
|
| |
• |
|
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;
|
| |
• |
|
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; |
| |
• |
|
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; |
| |
• |
|
if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; |
| |
• |
|
information with respect to book-entry procedures, if any; |
| |
• |
|
the antidilution provisions of the warrants, if any; |
| |
• |
|
any redemption or call provisions; |
| |
• |
|
whether the warrants are to be sold separately or with other securities as parts of units; and |
| |
• |
|
any additional terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants.
|
33
BOOK-ENTRY ISSUANCE
If any Debt Securities, Preferred Stock, Depositary Shares or other securities registered under the registration statement of which this
prospectus forms a part (collectively, “Book Entry Securities”) are to be represented by global certificates, The Depository Trust Company (“DTC”) will act as securities depositary for all of the Book Entry Securities, unless
otherwise specified in the prospectus supplement relating to an offering of a particular series of Book Entry Securities.
The following is a summary of the depository arrangements applicable to such securities issued in global form and for which DTC,
or its successor, acts as depositary (in the United States) or for which either Euroclear Bank, S.A./N.V., or its successor, as operator of the Euroclear System, which we refer to as Euroclear, or Clearstream Banking, sociéte anonyme,
or its successor, which we refer to as Clearstream, Luxembourg, acts as depositary (outside of the United States). If there are any changes from this summary, they will appear in a prospectus supplement.
DTC
If any securities
are to be issued in global form, you will not receive a paper certificate representing the securities you have purchased. Instead the Company will deposit with DTC or its custodian one or more fully-registered global certificates (“Global
Certificates”) registered in the name of Cede & Co. (DTC’s nominee) for the Book Entry Securities, representing the aggregate principal amount of Debt Securities, or the total number of shares of Preferred Stock or Depositary
Shares or the other securities, respectively.
Since the Global Certificate is registered in the name of DTC or its nominee,
DTC or its nominee is said to have legal or record ownership of the Global Certificate. Persons who buy interests in the Global Security by purchasing securities are said to own a beneficial interest in the Global Security.
Only institutions (sometimes referred to as “participants”) that have accounts with DTC or its nominee or persons that may hold
interests through participants, such as individual members of the public, may own beneficial interests in a Global Certificate. Ownership of beneficial interests in a Global Certificate by participants will be evidenced only by, and the transfer of
that ownership interest will be effected only through, records maintained by DTC or its nominee.
Ownership of beneficial
interests in a Global Certificate by persons that hold through participants will be evidenced only by, and the transfer of that ownership interest within that participant will be effected only through, records maintained by that participant.
DTC has no knowledge of the actual beneficial owners of the Book Entry Securities. Beneficial owners will not receive written
confirmation from DTC of their purchase, but beneficial owners are expected to receive written confirmations providing details of the transaction, as well as periodic statements of their holdings, from the participants through which the beneficial
owners purchased the securities.
DTC alone is responsible for any aspect of its records, any nominee or any participant
relating to, or payments made on account of, beneficial interests in a Global Certificate or for maintaining, supervising or reviewing any of the records of DTC, any nominee or any participant relating to such beneficial interests.
The laws of some jurisdictions require that certain purchasers of securities take physical delivery of such securities in definitive
form. Such laws may impair the ability to transfer beneficial interests in a Global Certificate.
We have been advised by DTC
that upon the issuance of a Global Certificate and the deposit of that Global Certificate with DTC, DTC will immediately credit, on its book-entry registration and transfer system, the respective principal amounts or numbers of shares represented by
that Global Certificate to the accounts of its participants.
34
You will be required to make your initial payment for the Debt Securities in immediately
available funds. Secondary market trading between DTC participants will occur in the ordinary way in accordance with DTC rules and will be settled in immediately available funds using DTC’s Same-Day Funds Settlement System.
The Company will pay principal of, and premium, interest or dividends on, securities represented by a Global Certificate registered in
the name of or held by DTC or its nominee to the relevant paying agent who in turn will make payments to DTC or its nominee, as the case may be, as the registered owner and holder of the Global Certificate representing those securities in
immediately available funds. We have been advised by DTC that upon receipt of any payment of principal of, or interest or premium (or contract adjustment payments) on, a Global Certificate, DTC will immediately credit, on its book-entry registration
and transfer system, accounts of participants with payments in amounts proportionate to their respective beneficial interests in the principal or stated amount of that Global Certificate as shown in the records of DTC. Payments by participants to
owners of beneficial interests in a Global Certificate held through those participants will be governed by standing instructions and customary practices, as is now the case with securities held for the accounts of customers in bearer form or
registered in “street name”, and will be the sole responsibility of those participants, subject to any statutory or regulatory requirements as may be in effect from time to time. If an issue of Book Entry Securities is denominated in a
currency other than the U.S. dollar, we will make payments of principal and any interest, as applicable, in the foreign currency in which the Book Entry Securities are denominated or in U.S. dollars. DTC has elected to have all payments of principal
and interest paid in U.S. dollars unless notified by any of its participants through which an interest in the Book Entry Securities is held that it elects, in accordance with, and to the extent permitted by, the accompanying prospectus supplement
and the Book Entry Security, to receive payment of principal or interest in the foreign currency. On or prior to the third business day after the record date for payment of interest and 12 days prior to the date for payment of principal, a
participant will be required to notify DTC of (a) its election to receive all, or the specified portion, of payment in the foreign currency and (b) its instructions for wire transfer of payment to a foreign currency account.
Global Certificates are generally not transferable. A Global Certificate is exchangeable for definitive securities (paper certificates)
registered in the name of, and a transfer of a Global Certificate may be registered to, any person other than DTC or its nominee, only if:
| |
(a) |
DTC notifies us that it is unwilling or unable to continue as depositary for that Global Certificate or if at any time DTC ceases to be a clearing agency registered
under the Exchange Act or other applicable statute or regulation and we are unable to locate a qualified successor depositary; |
| |
(b) |
we determine in our discretion that the Global Certificate shall be exchangeable for definitive securities in registered form; or |
| |
(c) |
in the case of Debt Securities, there shall have occurred and be continuing an Event of Default or an event which, with notice or the lapse of time or both, would
constitute an Event of Default with respect to the Debt Securities. |
Any Global Certificate representing a Debt
Security that is exchangeable pursuant to the preceding paragraph will be exchangeable in whole for definitive Debt Securities in registered form, of like tenor and of an equal aggregate principal amount as the Global Certificate, in denominations
specified in the applicable prospectus supplement (if other than $1,000 and integral multiples of $1,000). The definitive Debt Securities will be registered by the registrar in the name or names instructed by DTC. We expect that such instructions
may be based upon directions received by DTC from its participants with respect to ownership of beneficial interests in the Global Certificate. Any principal, premium and interest will be payable, the transfer of the definitive Debt Securities will
be registerable and the definitive Debt Securities will be exchangeable at the office specified in the applicable prospectus supplement, provided that payment of interest may be made at the option of the Company by check mailed to the address of the
person entitled to that interest payment as of the record date and as shown on the register for the Debt Securities. In the event definitive securities are issued, (i) holders of definitive securities will be able to transfer their debt
securities, in whole or in part, by surrendering the debt
35
securities for registration of transfer at the corporate trust office of the applicable security registrar. We will not charge any fee for the registration or transfer or exchange, except that we
may require the payment of a sum sufficient to cover any applicable tax or other governmental charge payable in connection with the transfer and (ii) any moneys we pay to our paying agents for the payment of principal and interest on a Debt
Security that remains unclaimed at the second anniversary of the date such payment was due will be returned to us, and thereafter holders of definitive securities may look only to us, as general unsecured creditors, for payment.
DTC may discontinue providing its services as securities depositary with respect to any of the Book Entry Securities at any time by
giving reasonable notice to the relevant Trustee (or agent) and the Company. In the event that a successor securities depositary is not obtained, definitive Debt Security or Preferred Stock certificates representing such Debt Security or Preferred
Stock will be printed and delivered. The Company, at its option, may decide to discontinue use of the system of book-entry transfers through DTC (or a successor depositary).
Except as provided above, owners of the beneficial interests in a Global Security representing a Debt Security will not be entitled to receive physical delivery of Debt Securities in definitive form and
will not be considered the holders of securities for any purpose under the Indentures.
No Global Security shall be
exchangeable except for another Global Security of like denomination and tenor to be registered in the name of DTC or its nominee. Accordingly, each person owning a beneficial interest in a Global Security must rely on the procedures of DTC and, if
that person is not a participant, on the procedures of the participant through which that person owns its interest, to exercise any rights of a holder under the Global Security or the Indentures.
Redemption notices will be sent to Cede & Co. as the registered holder of the Book Entry Securities. If less than all of a
series of the Debt Securities are being redeemed, DTC will determine the amount of the interest of each direct participant to be redeemed in accordance with its then-current procedures.
Although voting with respect to the Book Entry Securities is limited to the holders of record of the Book Entry Securities, in those
instances in which a vote is required, neither DTC nor Cede & Co. will itself consent or vote with respect to Book Entry Securities. Under its usual procedures, DTC would mail an omnibus proxy (the “Omnibus Proxy”) to the relevant
Trustee (or agent) as soon as possible after the record date. The Omnibus Proxy assigns Cede & Co.’s consenting or voting rights to those direct participants to whose accounts such Book Entry Securities are credited on the record date
(identified in a listing attached to the Omnibus Proxy).
DTC has advised us that DTC is a limited purpose trust company
organized under the laws of the State of New York, a “banking organization” within the meaning of the New York Banking Law, a member of the Federal Reserve System, a “clearing corporation” within the meaning of the New York
Uniform Commercial Code and a “clearing agency” registered under the Exchange Act. DTC was created to hold securities of its participants and to facilitate the clearance and settlement of securities transactions among its participants in
such securities through electronic computerized book-entry changes in accounts of the participants, thereby eliminating the need for physical movement of securities certificates. DTC’s participants include securities brokers and dealers, banks,
trust companies, clearing corporations and certain other organizations, some of whom (and/or their representatives) own DTC. Access to DTC’s book-entry system is also available to others, such as banks, brokers, dealers and trust companies that
clear through or maintain a custodial relationship with a participant, either directly or indirectly. The rules applicable to DTC and its participants are on file with the SEC.
36
Clearstream, Luxembourg and Euroclear
We have been advised by Clearstream, Luxembourg and Euroclear, respectively, as follows:
| |
• |
|
As to Clearstream, Luxembourg: Clearstream, Luxembourg has advised us that it was incorporated as a limited liability company under
Luxembourg law. Clearstream, Luxembourg is owned by Cedel International, société anonyme, and Deutsche Börse AG. The shareholders of these two entities are banks, securities dealers and financial institutions.
|
| |
• |
|
Clearstream, Luxembourg holds securities for its customers and facilitates the clearance and settlement of securities transactions between Clearstream,
Luxembourg customers through electronic book-entry changes in accounts of Clearstream, Luxembourg customers, thus eliminating the need for physical movement of certificates. Transactions may be settled by Clearstream, Luxembourg in many currencies,
including United States dollars. Clearstream, Luxembourg provides to its customers, among other things, services for safekeeping, administration, clearance and settlement of internationally traded securities, securities lending and borrowing.
Clearstream, Luxembourg also deals with domestic securities markets in over 30 countries through established depository and custodial relationships. Clearstream, Luxembourg interfaces with domestic markets in a number of countries. Clearstream,
Luxembourg has established an electronic bridge with Euroclear Bank S.A./N.V., the operator of Euroclear, or the Euroclear operator, to facilitate settlement of trades between Clearstream, Luxembourg and Euroclear. |
| |
• |
|
As a registered bank in Luxembourg, Clearstream, Luxembourg is subject to regulation by the Luxembourg Commission for the Supervision of the Financial
Sector. Clearstream, Luxembourg customers are recognized financial institutions around the world, including underwriters, securities brokers and dealers, banks, trust companies and clearing corporations. In the United States, Clearstream, Luxembourg
customers are limited to securities brokers and dealers and banks, and may include the underwriters for the Book Entry Securities. Other institutions that maintain a custodial relationship with a Clearstream, Luxembourg customer may obtain indirect
access to Clearstream, Luxembourg. Clearstream, Luxembourg is an indirect participant in DTC. |
| |
• |
|
Distributions with respect to the Book Entry Securities held beneficially through Clearstream, Luxembourg will be credited to cash accounts of
Clearstream, Luxembourg customers in accordance with its rules and procedures, to the extent received by Clearstream, Luxembourg. |
| |
• |
|
As to Euroclear: Euroclear has advised us that it was created in 1968 to hold securities for participants of Euroclear and to clear and settle
transactions between Euroclear participants through simultaneous electronic book-entry delivery against payment, thus eliminating the need for physical movement of certificates and risk from lack of simultaneous transfers of securities and cash.
Transactions may now be settled in many currencies, including United States dollars and Japanese Yen. Euroclear provides various other services, including securities lending and borrowing and interfaces with domestic markets in several countries
generally similar to the arrangements for cross-market transfers with DTC described below. |
| |
• |
|
Euroclear is operated by the Euroclear operator, under contract with Euroclear plc, a U.K. corporation. The Euroclear operator conducts all operations,
and all Euroclear securities clearance accounts and Euroclear cash accounts are accounts with the Euroclear operator, not Euroclear plc. Euroclear plc establishes policy for Euroclear on behalf of Euroclear participants. Euroclear participants
include banks (including central banks), securities brokers and dealers and other professional financial intermediaries and may include the underwriters for the Book Entry Securities. Indirect access to Euroclear is also available to other firms
that clear through or maintain a custodial relationship with a Euroclear participant, either directly or indirectly. Euroclear is an indirect participant in DTC. |
The Euroclear operator is a Belgian bank. The Belgian Banking Commission and the National Bank of Belgium regulate and examine the
Euroclear operator.
37
The Terms and Conditions Governing Use of Euroclear and the related Operating Procedures of
the Euroclear System, or the Euroclear Terms and Conditions, and applicable Belgian law govern securities clearance accounts and cash accounts with the Euroclear operator. Specifically, these terms and conditions govern:
| |
• |
|
transfers of securities and cash within Euroclear; |
| |
• |
|
withdrawal of securities and cash from Euroclear; and |
| |
• |
|
receipt of payments with respect to securities in Euroclear. |
All securities in Euroclear are held on a fungible basis without attribution of specific certificates to specific securities clearance
accounts. The Euroclear operator acts under the terms and conditions only on behalf of Euroclear participants and has no record of or relationship with persons holding securities through Euroclear participants.
Distributions with respect to Book Entry Securities held beneficially through Euroclear will be credited to the cash accounts of
Euroclear participants in accordance with the Euroclear Terms and Conditions, to the extent received by the Euroclear operator.
Secondary market trading between Clearstream, Luxembourg customers and/or Euroclear participants will occur in the ordinary way in
accordance with the applicable rules and operating procedures of Clearstream, Luxembourg and Euroclear and will be settled using the procedures applicable to conventional eurobonds in immediately available funds.
Cross-market transfers between persons holding Book Entry Securities directly or indirectly through DTC, on the one hand, and directly or
indirectly through Clearstream, Luxembourg customers or Euroclear participants, on the other, will be effected in DTC in accordance with DTC rules on behalf of the relevant European international clearing system by a U.S. depositary; however, such
cross-market transactions will require delivery of instructions to the relevant European international clearing system by the counterparty in such system in accordance with its rules and procedures and within its established deadlines (based on
European time). The relevant European international clearing system will, if the transaction meets its settlement requirements, deliver instructions to the U.S. depositary to take action to effect final settlement on its behalf by delivering or
receiving Book Entry Securities in DTC, and making or receiving payment in accordance with normal procedures for same-day funds settlement applicable to DTC. Clearstream, Luxembourg customers and Euroclear participants may not deliver instructions
directly to their respective U.S. depositaries.
Because of time-zone differences, credits of Book Entry Securities received
in Clearstream, Luxembourg or Euroclear as a result of a transaction with a DTC participant will be made during subsequent securities settlement processing and dated the business day following the DTC settlement date. Such credits or any
transactions in such Book Entry Securities settled during such processing will be reported to the relevant Clearstream, Luxembourg customers or Euroclear participants on such business day. Cash received in Clearstream, Luxembourg or Euroclear as a
result of sales of Book Entry Securities by or through a Clearstream, Luxembourg customer or a Euroclear participant to a DTC participant will be received with value on the DTC settlement date but will be available in the relevant Clearstream,
Luxembourg or Euroclear cash account only as of the business day following settlement in DTC.
DTC, Clearstream, Luxembourg
and Euroclear are under no obligation to perform or continue to perform the procedures described above and such procedures may be discontinued at any time.
The information in this section concerning DTC and DTC’s book-entry system as well as Clearstream, Luxembourg and Euroclear and their respective book-entry systems has been obtained from sources that
the Company believes to be accurate, but the Company assumes no responsibility for the accuracy thereof. The Company does not have any responsibility for the performance by DTC, Clearstream, Luxembourg, Euroclear or participants therein of their
respective obligations as described herein or under the rules and procedures governing their respective operations.
38
PLAN OF DISTRIBUTION (CONFLICTS OF INTEREST)
Securities offered by the Company
The securities to be offered by the Company may be sold in a public offering to or through agents, underwriters or dealers designated from time to time or directly to purchasers. The Company may sell its
securities as soon as practicable after effectiveness of the registration statement of which this prospectus forms a part. The names of any underwriters or dealers involved in the sale of the securities in respect of which this prospectus is
delivered, the amount or number of securities to be purchased by any such underwriters and any applicable commissions or discounts will be set forth in the applicable prospectus supplement.
Underwriters may offer and sell securities at a fixed price or prices, which may be changed, or from time to time at market prices
prevailing at the time of sale, at prices related to such prevailing market prices or at negotiated prices. In connection with the sale of securities offered by this prospectus, underwriters may be deemed to have received compensation from the
Company in the form of underwriting discounts or commissions. Underwriters may sell securities to or through dealers, and such dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters.
Any underwriters utilized may engage in stabilizing transactions and syndicate covering transactions in accordance with Rule 104 under
the Exchange Act. Stabilizing transactions permit bids to purchase the offered securities or any underlying security so long as the stabilizing bids do not exceed a specified maximum. Syndicate covering transactions involve purchases of the
securities in the open market after the distribution has been completed in order to cover syndicate short positions. Such stabilizing transactions and syndicate covering transactions may cause the price of the securities to be higher than it would
otherwise be in the absence of such transactions.
Any underwriting compensation paid by the Company to underwriters in
connection with the offering of securities, and any discounts, concessions or commissions allowed by such underwriters to participating dealers, will be described in an accompanying prospectus supplement. Underwriters and dealers participating in
the distribution of securities may be deemed to be underwriters, and any discounts and commissions received by them and any profit realized by them on resale of such securities may be deemed to be underwriting discounts and commissions, under the
Securities Act. Underwriters and dealers may be entitled under agreements with the Company to indemnification against and contribution toward certain civil liabilities, including liabilities under the Securities Act, and to reimbursement by the
Company for certain expenses.
In connection with the offering of securities of the Company, the Company may grant to the
underwriters an option to purchase additional securities to cover over-allotments, if any, at the initial public offering price (with an additional underwriting commission), as may be set forth in the prospectus supplement for such securities. If
the Company grants any over-allotment option, the terms of such over-allotment option will be set forth in the prospectus supplement for such securities.
Underwriters and dealers and their affiliates and associates may engage in transactions with, or perform services for, the Company and/or any of its affiliates in the ordinary course of business. Certain
of the underwriters and dealers, and their affiliates and associates may be customers of, including borrowers from, engage in transactions with, and perform services for, the Company, The Bank of New York Mellon, BNY Mellon, N.A., Pershing LLC and
other subsidiaries of the Company in the ordinary course of business.
In addition, in the ordinary course of their business
activities, the underwriters and their affiliates may make or hold a broad array of investments and actively trade debt and equity securities (or related derivative securities) and financial instruments (including bank loans) for their own account
and for the accounts of their customers. Such investments and securities activities may involve securities and/or instruments of ours or our affiliates. If any of the underwriters or their affiliates have a lending relationship with us, certain of
those underwriters or
39
their affiliates routinely hedge, and certain other of those underwriters may hedge, their credit exposure to us consistent with their customary risk management policies. Typically, these
underwriters and their affiliates would hedge such exposure by entering into transactions that consist of either the purchase of credit default swaps or the creation of short positions in our securities, including potentially the debt securities
offered hereby. Any such credit default swaps or short positions could adversely affect future trading prices of the debt securities offered hereby. The underwriters and their affiliates may also make investment recommendations and/or publish or
express independent research views in respect of such securities or financial instruments and may hold, or recommend to clients that they acquire, long and/or short positions in such securities and instruments.
Securities other than the Common Stock will be new issues of securities and will have no established trading market. Any underwriters to
whom such securities are sold for public offering and sale may make a market in such securities, but such underwriters will not be obligated to do so and may discontinue any market making at any time without notice. Such securities may or may not be
listed on a national securities exchange. No assurance can be given as to the liquidity of or the existence of trading markets for any securities other than the Common Stock.
The Company 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, 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 the Company or others to settle those sales or to close out any related open borrowings of stock, and may use securities received from the Company in settlement of those derivatives to close out any related open borrowings of stock. The
third party in such sale transactions will be an underwriter and will be identified in the applicable prospectus supplement.
Common Stock
offered by a Selling Shareholder
Shares of Common Stock may be offered and sold by any selling shareholder who has
acquired Common Stock from the Company in transactions that were not registered under the Securities Act. Sales of shares of Common Stock by a selling shareholder may be effected from time to time in one or more of the following transactions:
(a) through brokers, acting as agent in transactions (which may involve block transactions), in special offerings, on any exchange where the Common Stock is traded, or otherwise, at market prices obtainable at the time of sale, at prices
related to such prevailing market prices, at negotiated prices or at fixed prices; (b) to underwriters who will acquire the shares of Common Stock for their own account and resell them in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined at the time of sale (any public offering price and any discount or concessions allowed or reallowed or paid to dealers may be changed from time to time);
(c) directly or through brokers or agents in private sales at negotiated prices; (d) to lenders pledged as collateral to secure loans, credit or other financing arrangements and any subsequent foreclosure, if any, thereunder;
(e) through short sales, option exercises or other derivative transactions; or (f) by any other legally available means. Also, offers to purchase shares may be solicited by agents designated by any selling shareholder from time to time.
This prospectus may be delivered by underwriters and dealers in connection with short sales undertaken to hedge exposures under commitments to acquire shares of Common Stock from selling shareholders to be sold on a delayed or contingent basis.
Any selling shareholder and any agents or broker-dealers that participate with such selling shareholder in the distribution
of any of the shares of Common Stock may be deemed to be “underwriters” within the meaning of the Securities Act, and any discount or commission received by them and any profit on the resale of the shares purchased by them may be deemed to
be underwriting discounts or commissions under the Securities Act.
In connection with a sale of shares of Common Stock by any
selling shareholder pursuant to this prospectus, the following information will, to the extent then required, be provided in the applicable prospectus supplement relating to such sale: the identity of the selling shareholder, the manner in which the
selling shareholder acquired
40
the Common Stock from the Company, the number of shares to be sold, the purchase price, the public offering price, if applicable, the name of any underwriter, agent or broker-dealer, and any
applicable commissions, discounts or other items constituting compensation to such underwriters, agents or broker-dealers with respect to the particular sale.
Conflicts of Interest
BNY Mellon Capital Markets, LLC, a broker-dealer
registered with FINRA and a wholly-owned subsidiary of the Company, may participate in offerings of securities made by means of this prospectus. Accordingly, BNY Mellon Capital Markets, LLC has a “conflict of interest” as defined in FINRA
Rule 5121(f)(5)(B), and any offerings made by means of this prospectus will be conducted in compliance with Rule 5121. In general, under Rule 5121, a Qualified Independent Underwriter will not be necessary for these offerings pursuant to
Rule 5121(a)(1)(C) or Rule 5121(a)(1)(B), as the Company will be offering securities that have been rated investment grade or in the same series as securities that have been rated investment grade or will be offering its Common Stock, which has
a bona fide public market for purposes of Rule 5121. No underwriter having a Rule 5121 conflict of interest will be permitted under that rule to confirm sales to any account over which the underwriter exercises discretionary authority without the
specific written approval of the accountholder.
Market-Making Transactions by Affiliates
The Company, BNY Mellon Capital Markets, LLC or any other affiliate controlled by the Company may use this prospectus and applicable
prospectus supplement in a market-making transaction involving the securities after the initial sale. These transactions may be executed at negotiated prices that are related to market prices at the time of purchase or sale, or at other prices. The
Company and its affiliates may act as principal or agent in these transactions. Our affiliates, including BNY Mellon Capital Markets, LLC, are not obligated to make a market in any of these securities and may discontinue any market-making activities
at any time without notice.
The securities to be sold in market-making transactions include securities to be issued after the
date of this prospectus, as well as securities previously issued.
Information about the trade and settlement dates, as well
as the purchase price, for a market-making transaction will be provided to the purchaser in a separate confirmation of sale.
Unless you are informed otherwise in the confirmation of sale, this prospectus is being used in a market-making transaction.
VALIDITY OF SECURITIES
Unless otherwise indicated in the applicable prospectus supplement, the validity of the securities offered by this prospectus will be passed upon for the Company by Kathleen B. McCabe, Chief Securities
Counsel of the Company, and for the underwriters, dealer or agent, as the case may be, by Cleary Gottlieb Steen & Hamilton LLP, New York, New York. As of the date of this prospectus, Ms. McCabe owns less than 1% of the Company’s
securities.
EXPERTS
The consolidated financial statements of The Bank of New York Mellon Corporation and its subsidiaries as of December 31, 2014 and
2013, and for each of the years in the three-year period ended December 31, 2014, and management’s 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.
41
Part II
INFORMATION NOT REQUIRED IN PROSPECTUS
| Item 14. |
Other Expenses of Issuance and Distribution.* |
The following is a statement of estimated expenses (other than underwriting discounts and commissions) to be incurred by the Company in connection with the distribution of the securities registered under
this registration statement.
|
|
|
|
|
| SEC registration fee |
|
$ |
* |
|
| Fees of the Trustee or Depositary (if applicable) |
|
|
** |
|
| Printing fees |
|
|
** |
|
| Accounting services |
|
|
** |
|
| Legal fees |
|
|
** |
|
| Miscellaneous fees and expenses |
|
|
** |
|
|
|
|
|
|
| Total |
|
$ |
** |
|
|
|
|
|
|
| * |
Deferred in reliance upon Rules 456(b) and 457(r) under the Securities Act. |
| ** |
These fees and expenses are calculated based on the number of issuances and amount of securities offered and accordingly cannot be estimated at this time.
|
The foregoing sets forth the general categories of expenses (other than underwriting discounts and commissions)
that we anticipate incurring in connection with the distribution of the securities registered under this registration statement. Information regarding estimated expenses of issuance and distribution of each identified class of securities being
registered will be provided at the time information as to such class is included in a prospectus supplement in accordance with Rule 430B under the Securities Act.
| Item 15. |
Indemnification of Directors and Officers. |
Section 102(b)(7) of the DGCL permits a corporation, in its certificate of incorporation, to limit or eliminate, subject to certain statutory limitations, the liability of directors to the
corporation or its stockholders for monetary damages for breaches of fiduciary duty, except for liability (a) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (b) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of law, (c) under Section 174 of the DGCL or (d) for any transaction from which the director derived an improper personal benefit.
Under Section 145 of the DGCL, a corporation may indemnify a director, officer, employee or agent of the corporation (or a person
who is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise) against expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by the person if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. In the case of an action brought by or in the right of a corporation, the corporation may indemnify a director, officer, employee or agent of the corporation
(or a person who is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise) against expenses (including attorneys’ fees) actually
and reasonably incurred by him or her if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification may be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent a court finds that, in view of all the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses as the court shall deem proper.
II-1
The Company’s Restated Certificate of Incorporation (Article Eighth) provides that the
Company will indemnify its executive officers and directors, and any other person who served in such role for other entities at the request of the Company (“Covered Person”), to the fullest extent permitted by law, against all expenses,
judgments, fines and settlement amounts incurred by such person in connection with any threatened, pending or completed action, suit or proceeding by reason of the fact that such person was an executive officer or director of the Company or such
other entity. The Company will indemnify Covered Persons in connection with a proceeding commenced or brought by that person only if the commencement or bringing of the proceeding was authorized by the Company’s Board of Directors. The Company
will, to the fullest extent permitted by the DGCL, pay the expenses (including attorneys’ fees) of any Covered Person in defending a proceeding (other than a proceeding commenced or brought by the person without the specific authorization
of the Company’s Board of Directors), provided that, to the extent required by the DGCL, advancement of expenses will only be made if such person provides an undertaking to repay all amounts advanced if it is determined that he or she is not
entitled to indemnification.
The Company may purchase and maintain insurance to protect itself and any Covered Person against
liability or expense asserted or incurred by such Covered Person in connection with any proceeding, whether or not the Company would have the power to indemnify such Covered Person against such liability or expense by law or under the
indemnification provisions in the Company’s Restated Certificate of Incorporation.
The Company is authorized to enter
into contracts with any Director or executive officer, or, as authorized by the Board of Directors, any other employee or agent of the Corporation in furtherance of the provisions of Article Eighth of the Company’s Restated Certificate of
Incorporation and may create a trust fund, grant a security interest or use other means (including, without limitation, a letter of credit) to ensure the payment of such amounts as may be necessary to effect indemnification as provided in Article
Eighth of the Company’s Restated Certificate of Incorporation.
The Company has entered into indemnification agreements
with each of its executive officers and directors, providing that it will indemnify such executive officers and directors to the fullest extent permitted by law against all judgments, awards, fines, ERISA excise taxes, penalties, amounts paid in
settlement, liabilities and losses and will pay the expenses (including attorneys’ fees) of the executive officer or director if such executive officer or director is involved in any manner (including, without limitation, as a party or a
witness) in any civil, criminal, administrative or investigative action, suit, proceeding or procedure by reason of the fact of the executive officer or director’s position at the Company.
The Company also has a policy which indemnifies all employees (including executive officers) and directors of the Company and its
affiliates, to the fullest extent permitted by law against all judgments, awards, fines, ERISA excise taxes, penalties, amounts paid in settlement, liabilities and losses and pays the expenses (including attorneys’ fees) of the employee or
director if such employee or director is involved in any manner (including, without limitation, as a party or a witness) in any civil, criminal, administrative or investigative action, suit, proceeding or procedure by reason of the fact of the
employee or director’s position at the Company or a Company affiliate.
With respect to advancement of expenses, the DGCL
provides that the Company may advance expenses upon the receipt of an undertaking as described above, on such terms and conditions as it deems appropriate.
Pursuant to the
rules and regulations of the SEC, the Company has filed certain agreements as exhibits to this Registration Statement on Form S-3. These agreements may contain representations and warranties by the parties. These representations and warranties have
been made solely for the benefit of the other party or parties to such agreements and (i) may have been qualified by disclosures made to such other party or parties, (ii) were made only as of the date of such agreements or such other
date(s) as may be specified in such agreements and are
II-2
subject to more recent developments, which may not be fully reflected in the Company’s public disclosure, (iii) may reflect the allocation of risk among the parties to such agreements
and (iv) may apply materiality standards different from what may be viewed as material to investors. Accordingly, these representations and warranties may not describe the Company’s actual state of affairs at the date hereof and should not
be relied upon.
|
|
|
|
|
| Exhibits |
|
|
|
|
|
| |
1.1 |
|
|
Form of Underwriting Agreement.* |
|
|
| |
1.2 |
|
|
Form of Distribution Agreement among the Company and Barclays Capital Inc., BNY Mellon Capital Markets, LLC, Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Deutsche Bank Securities Inc., Goldman, Sachs & Co., J.P. Morgan Securities LLC, Morgan Stanley & Co. Incorporated, UBS Securities LLC and Wells Fargo Securities, LLC or
one or more other broker-dealers appointed by us from time to time, as Agents filed herewith. |
|
|
| |
1.3 |
|
|
Form of Registration Rights Agreement for shares of Common Stock between The Bank of New York Company, Inc. and Merrill Lynch International, incorporated by reference to
Exhibit 1.2 to The Bank of New York Company, Inc.’s Registration Statement on Form S-3 (Nos. 333-62516, 333-62516-01, 333-62516-02, 333-62516-03, 333-62516-04), filed on June 6, 2001. |
|
|
| |
2.1 |
|
|
Amended and Restated Agreement and Plan of Merger, dated as of December 3, 2006, as amended and restated as of February 28, 2007, and as further amended and restated as of March
30, 2007, between The Bank of New York Company, Inc., Mellon Financial Corporation and The Bank of New York Corporation, incorporated by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K (File Nos. 000-52710 and
001-06152), filed on July 2, 2007. |
|
|
| |
2.2 |
|
|
Form of Stock Purchase Agreement.* |
|
|
| |
4.1 |
|
|
Restated Certificate of Incorporation of The Bank of New York Mellon Corporation, incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K (File
Nos. 000-52710 and 001-06152), filed on July 2, 2007. |
|
|
| |
4.2 |
|
|
Certificate of Designations of The Bank of New York Mellon Corporation with respect to Series A Noncumulative Preferred Stock, dated June 15, 2007, incorporated by reference to
Exhibit 4.1 to the Company’s Current Report on Form 8-K (File Nos. 000-52710 and 001-06152), filed on July 5, 2007. |
|
|
| |
4.3 |
|
|
Certificate of Designations of The Bank of New York Mellon Corporation with respect to Series C Noncumulative Preferred Stock, dated September 14, 2012, incorporated by reference
to Exhibit 3.2 to the Company’s Registration Statement on Form 8-A (File No. 001-35651), filed on September 14, 2012. |
|
|
| |
4.4 |
|
|
Certificate of Designations of the Bank of New York Mellon Corporation with respect to Series D Noncumulative Preferred Stock, dated May 16, 2013, incorporated by reference to
Exhibit 3.1 to the Company’s Current Report on Form 8-K (File No. 001-35651), filed on May 16, 2013. |
|
|
| |
4.5 |
|
|
Certificate of Designations of the Bank of New York Mellon Corporation with respect to Series E Noncumulative Preferred Stock, dated April 27, 2015, incorporated by reference to
Exhibit 3.1 to the Company’s Current Report on Form 8-K (File No. 001-35651), filed on April 28, 2015. |
|
|
| |
4.6 |
|
|
Amended and Restated By-Laws of The Bank of New York Mellon Corporation, amended and restated on July 10, 2007 and subsequently amended on April 14, 2009, August 11, 2009,
February 9, 2010, July 2, 2010, October 12, 2010, October 8, 2013, March 5, 2015 and October 13, 2015 incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K (File No. 001-35651), filed on October 19,
2015. |
II-3
|
|
|
|
|
| Exhibits |
|
|
|
|
|
| |
4.7 |
|
|
Specimen of Certificate for The Bank of New York Mellon Corporation’s Common Stock, incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K
(File No. 000-52710 and File No. 001-06152), filed on July 2, 2007. |
|
|
| |
4.8 |
|
|
Senior Indenture, dated as of July 18, 1991, between The Bank of New York Mellon Corporation, successor to The Bank of New York Company, Inc. and Deutsche Bank Trust Company
Americas (f/k/a Bankers Trust Company), as Trustee, incorporated herein by reference to Exhibit 4.4 to The Bank of New York Company, Inc.’s Registration Statement on Form S-3 (File No. 33-51984), filed on September 15, 1992. |
|
|
| |
4.9 |
|
|
Senior Indenture, dated as of February 9, 2016, between The Bank of New York Mellon Corporation and Deutsche Bank Trust Company Americas, as Trustee filed
herewith. |
|
|
| |
4.10 |
|
|
Senior Subordinated Indenture, dated as of February 9, 2016, between The Bank of New York Mellon Corporation and Wilmington Trust, National Association, as Trustee filed
herewith. |
|
|
| |
4.11 |
|
|
Supplemental Indenture, dated as of June 29, 2007 among The Bank of New York Mellon Corporation, The Bank of New York Company, Inc. and Deutsche Bank Trust Company Americas,
incorporated by reference to Exhibit 4.2 to the Company’s Current Report on Form 8-K (File Nos. 000-52710 and 001-06152), filed on July 2, 2007. |
|
|
| |
4.12 |
|
|
Form of Global Fixed Rate Note for the Medium-Term Notes, Series G of The Bank of New York Mellon Corporation, incorporated by reference to Exhibit 4.1 to the Current Report on
Form 8-K (File No. 001-06152), filed on June 16, 2006 by The Bank of New York Company, Inc. |
|
|
| |
4.13 |
|
|
Form of Global Floating Rate Note for the Senior Medium-Term Notes, Series G of The Bank of New York Mellon Corporation, incorporated by reference to Exhibit 4.2 to the Current
Report on Form 8-K (File No. 001-06152), filed on June 16, 2006 by The Bank of New York Company, Inc. |
|
|
| |
4.14 |
|
|
Officers’ Certificate for the Senior Medium-Term Notes, Series G of The Bank of New York Mellon Corporation, incorporated by reference to Exhibit 4.4 to the Current Report
on Form 8-K (File No. 001-06152), filed on June 16, 2006 by The Bank of New York Company, Inc. |
|
|
| |
4.15 |
|
|
Form of Global Fixed Rate Note for the Medium-Term Notes, Series E of The Bank of New York Mellon Corporation, incorporated by reference to Exhibit 4.1 to the Current Report on
Form 8-K (File No. 001-06152), filed on June 26, 2002 by The Bank of New York Company, Inc. |
|
|
| |
4.16 |
|
|
Officers’ Certificate for the Senior Medium-Term Notes, Series E of The Bank of New York Mellon Corporation, incorporated by reference to Exhibit 4.4 to the Current Report
on Form 8-K (File No. 001-06152), filed on June 26, 2002 by The Bank of New York Company, Inc. |
|
|
| |
4.17 |
|
|
Form of Global Fixed Rate Note for the Senior Medium-Term Notes, Series I and Senior Subordinated Medium-Term Notes, Series J of The Bank of New York Mellon Corporation, filed
herewith. |
|
|
| |
4.18 |
|
|
Form of Global Floating Rate Note for the Senior Medium-Term Notes, Series I and Senior Subordinated Medium-Term Notes, Series J of The Bank of New York Mellon Corporation, filed
herewith. |
|
|
| |
4.19 |
|
|
Officers’ Certificate for the Senior Medium-Term Notes, Series I of The Bank of New York Mellon Corporation, filed herewith. |
|
|
| |
4.20 |
|
|
Officers’ Certificate for the Senior Subordinated Medium-Term Notes, Series J of The Bank of New York Mellon Corporation, filed herewith. |
|
|
| |
4.21 |
|
|
Form of Deposit Agreement (including form of Depositary Receipt).* |
|
|
| |
4.22 |
|
|
Form of Stock Purchase Contract Agreement.* |
II-4
|
|
|
|
|
| Exhibits |
|
|
|
|
|
| |
4.23 |
|
|
Form of Stock Purchase Unit Agreement.* |
|
|
| |
4.24 |
|
|
Form of Pledge Agreement.* |
|
|
| |
4.25 |
|
|
Form of Warrant.* |
|
|
| |
5.1 |
|
|
Opinion of Kathleen B. McCabe as to validity of the Debt Securities, Preferred Stock, Depositary Shares, Common Stock, Warrants, Stock Purchase Contracts and Stock Purchase Units
to be issued by The Bank of New York Mellon Corporation, filed herewith. |
|
|
| |
12.1 |
|
|
Computation of Ratio of Earnings to Fixed Charges and Earnings to Fixed Charges and Preferred Stock Dividends, filed herewith. |
|
|
| |
23.1 |
|
|
Consent of KPMG LLP, filed herewith. |
|
|
| |
23.2 |
|
|
Consent of Kathleen B. McCabe (included in Exhibit 5.1). |
|
|
| |
24.1 |
|
|
Powers of Attorney, filed herewith. |
|
|
| |
25.1 |
|
|
Form T-1 Statement of Eligibility of Deutsche Bank Trust Company Americas to act as trustee under the Senior Indenture, dated as of February 9, 2016, between The Bank of New York
Mellon Corporation and Deutsche Bank Trust Company Americas, filed herewith. |
|
|
| |
25.2 |
|
|
Form T-1 Statement of Eligibility of Wilmington Trust, National Association to act as trustee under the Senior Subordinated Indenture, dated as of February 9, 2016, between The
Bank of New York Mellon Corporation and Wilmington Trust, National Association, filed herewith. |
|
|
| |
25.3 |
|
|
Form T-1 Statement of Eligibility of Deutsche Bank Trust Company Americas to act as trustee under the Senior Indenture, dated as of July 18, 1991, between The Bank of New York
Mellon Corporation, successor to The Bank of New York Company, Inc. and Deutsche Bank Trust Company Americas (f/k/a Bankers Trust Company), as Trustee, filed herewith. |
| * |
To be filed by amendment or pursuant to a Current Report on Form 8-K. |
The
undersigned registrant hereby undertakes:
To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or 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 SEC 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;
II-5
provided, however, that paragraphs (i), (ii) and (iii) do not apply if the
information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC 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.
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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.
That, for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(i) Each prospectus filed by a Registrant pursuant to Rule 424(b)(3) shall be deemed to be
part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to
Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of
the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which the prospectus relates, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a
document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
That, for the purpose of determining liability of a Registrant under the Securities Act of 1933 to any purchaser in the initial
distribution of the securities, each undersigned Registrant undertakes that in a primary offering of securities of an 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 an 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 an undersigned Registrant or used or referred to by an undersigned Registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about an
undersigned Registrant or its securities provided by or on behalf of an undersigned Registrant; and
(iv) Any
other communication that is an offer in the offering made by an undersigned Registrant to the purchaser.
II-6
That, for purposes of determining any liability under the Securities Act of 1933,
each filing of Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
To deliver or cause to be delivered with the
prospectus, to each person to whom the prospectus is sent or given, the latest annual report to security holders that is incorporated by reference in the prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3
under the Securities Exchange Act of 1934; and, where interim financial information required to be presented by Article 3 of Regulation S-X are not set forth in the prospectus, to deliver, or cause to be delivered to each person to whom the
prospectus is sent or given, the latest quarterly report that is specifically incorporated by reference in the prospectus to provide such interim financial information.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of each Registrant pursuant to the foregoing provisions,
or otherwise, each Registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by a Registrant of expenses incurred or paid by a director, officer or controlling person of a 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, that Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
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 SEC under Section 305(b)(2) of the Trust Indenture Act.
II-7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, The Bank of New York Mellon Corporation 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 New York, State of New York, on the 9th day of February, 2016.
|
|
|
| THE BANK OF NEW YORK MELLON CORPORATION (Registrant) |
|
|
| By: |
|
/s/ GERALD L.
HASSELL |
|
|
Name: Gerald L. Hassell Title: Chairman and Chief Executive Officer |
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement
has been signed below by the following persons in the capacities indicated on the 9th day of February, 2016.
|
|
|
| Signature |
|
Title |
| /s/ GERALD L. HASSELL
Gerald L. Hassell |
|
Director and Principal Executive Officer |
|
|
| /s/ THOMAS P. GIBBONS
Thomas P. Gibbons |
|
Principal Financial Officer |
|
|
| /s/ KURTIS R. KURIMSKY
Kurtis R. Kurimsky |
|
Principal Accounting Officer |
|
|
| * Nicholas M. Donofrio |
|
Director |
|
|
| * Joseph J. Echevarria |
|
Director |
|
|
| * Edward P. Garden |
|
Director |
|
|
| * Jeffrey A. Goldstein |
|
Director |
|
|
| * John M. Hinshaw |
|
Director |
|
|
| * Edmund F. Kelly |
|
Director |
|
|
| * Richard J. Kogan |
|
Director |
|
|
| * John A. Luke, Jr. |
|
Director |
II-8
|
|
|
| Signature |
|
Title |
|
|
| * Mark A. Nordenberg |
|
Director |
|
|
| * Catherine A. Rein |
|
Director |
|
|
| * William C. Richardson |
|
Director |
|
|
| * Samuel C. Scott III |
|
Director |
|
|
| * Wesley W. von Schack |
|
Director |
| * |
Kathleen B. McCabe, by signing her name hereto, does sign this document on behalf of the above-noted individuals, pursuant to the power of attorney duly executed by
such individuals, which has been filed as an exhibit to this registration statement. |
|
|
| /s/ KATHLEEN B.
MCCABE |
| Name: Kathleen B. McCabe
Title: Attorney-in-fact |
II-9
INDEX TO EXHIBITS
|
|
|
|
|
| Exhibit No. |
|
Description of Exhibit |
|
Method of Filing |
|
|
|
| 1.1 |
|
Form of Underwriting Agreement. |
|
To be filed by amendment or pursuant to a Current Report on Form 8-K. |
|
|
|
| 1.2 |
|
Form of Distribution Agreement among the Company and Barclays Capital Inc., BNY Mellon Capital Markets, LLC, Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Deutsche Bank Securities Inc., Goldman, Sachs & Co., J.P. Morgan Securities LLC, Morgan Stanley & Co. Incorporated, UBS Securities LLC and Wells Fargo Securities, LLC or
one or more other broker-dealers appointed by us from time to time, as Agents. |
|
Filed herewith. |
|
|
|
| 1.3 |
|
Form of Registration Rights Agreement for shares of Common Stock between The Bank of New York Company, Inc. and Merrill Lynch International. |
|
Previously filed as Exhibit 1.2 to The Bank of New York Company, Inc.’s Registration Statement on Form S-3 (No. 333-62516, 333-62516-01,
333-62516-02, 333-62516-03, 333-62516-04) filed on June 6, 2001, and incorporated herein by reference. |
|
|
|
| 2.1 |
|
Amended and Restated Agreement and Plan of Merger, dated as of December 3, 2006, as amended and restated as of February 28, 2007, and as further amended and restated as of March 30,
2007, between The Bank of New York Company, Inc., Mellon Financial Corporation and The Bank of New York Corporation. |
|
Previously filed as Exhibit 2.1 to the Company’s Current Report on Form 8-K (File No. 000-52710 and File No. 001-06152) filed on July 2, 2007, and incorporated herein by
reference. |
|
|
|
| 2.2 |
|
Form of Stock Purchase Agreement. |
|
To be filed by amendment or pursuant to a Current Report on Form 8-K. |
|
|
|
| 4.1 |
|
Restated Certificate of Incorporation of The Bank of New York Mellon Corporation. |
|
Previously filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K (File No. 000-52710 and File No. 001-06152) filed on July 2, 2007, and incorporated herein by
reference. |
|
|
|
| 4.2 |
|
Certificate of Designations of The Bank of New York Mellon Corporation with respect to Series A Noncumulative Preferred Stock, dated June 15, 2007. |
|
Previously filed as Exhibit 4.1 to the Company’s Current Report on Form 8-K (File No. 000-52710 and File No. 001-06152) filed on July 5, 2007, and incorporated herein by
reference. |
|
|
|
| 4.3 |
|
Certificate of Designations of The Bank of New York Mellon Corporation with respect to Series C Noncumulative Preferred Stock, dated September 14, 2012. |
|
Previously filed as Exhibit 3.2 to the Company’s Registration Statement on Form 8-A (File No. 001-35651) filed on
September 14, 2012, and incorporated herein by reference. |
II-10
|
|
|
|
|
| Exhibit No. |
|
Description of Exhibit |
|
Method of Filing |
|
|
|
| 4.4 |
|
Certificate of Designations of the Bank of New York Mellon Corporation with respect to Series D Noncumulative Preferred Stock, dated May 16, 2013. |
|
Previously filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on May 16, 2013 (File No. 001-35651), and incorporated herein by reference. |
|
|
|
| 4.5 |
|
Certificate of Designations of the Bank of New York Mellon Corporation with respect to Series E Noncumulative Preferred Stock, dated April 27, 2015. |
|
Previously filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on April 27, 2015 (File No. 001-35651), and incorporated herein by reference. |
|
|
|
| 4.6 |
|
Amended and Restated By-Laws of The Bank of New York Mellon Corporation, amended and restated on July 10, 2007 and subsequently amended on April 14, 2009, August 11, 2009,
February 9, 2010, July 2, 2010, October 12, 2010, October 8, 2013, March 5, 2015 and October 13, 2015. |
|
Previously filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on October 19, 2015 (File No. 001-35651), and incorporated herein by
reference. |
|
|
|
| 4.7 |
|
Specimen of Certificate for The Bank of New York Mellon Corporation’s Common Stock. |
|
Previously filed as Exhibit 4.1 to the Company’s Current Report on Form 8-K (File No. 000-52710 and File No. 001-06152) filed on July 2, 2007, and incorporated herein by
reference. |
|
|
|
| 4.8 |
|
Senior Indenture, dated as of July 18, 1991, between The Bank of New York Mellon Corporation, successor to The Bank of New York Company, Inc. and Deutsche Bank Trust Company
Americas (f/k/a Bankers Trust Company), as Trustee. |
|
Previously filed as Exhibit 4.4 to The Bank of New York Company, Inc.’s Registration Statement on Form S-3 (No. 33-51984) filed on September 15, 1992, and incorporated herein
by reference. |
|
|
|
| 4.9 |
|
Senior Indenture, dated as of February 9, 2016, between The Bank of New York Mellon Corporation and Deutsche Bank Trust Company Americas, as Trustee. |
|
Filed herewith. |
|
|
|
| 4.10 |
|
Senior Subordinated Indenture, dated as of February 9, 2016, between The Bank of New York Mellon Corporation and Wilmington Trust, National Association, as Trustee. |
|
Filed herewith. |
|
|
|
| 4.11 |
|
Supplemental Indenture, dated as of June 29, 2007 among The Bank of New York Mellon Corporation, The Bank of New York Company, Inc. and Deutsche Bank Trust Company
Americas. |
|
Previously filed as Exhibit 4.2 to the Company’s Current Report on Form 8-K filed on July 2, 2007 (File No. 000-52710 and File No. 001-06152), and incorporated herein
by reference. |
|
|
|
| 4.12 |
|
Form of Global Fixed Rate Note for the Medium-Term Notes, Series G of The Bank of New York Mellon Corporation. |
|
Previously filed as Exhibit 4.1 to the Current Report on Form 8-K (File No. 001-06152), filed on June 16, 2006 by The Bank of New York Company, Inc., and incorporated herein by
reference. |
II-11
|
|
|
|
|
| Exhibit No. |
|
Description of Exhibit |
|
Method of Filing |
|
|
|
| 4.13 |
|
Form of Global Floating Rate Note for the Senior Medium-Term Notes, Series G of The Bank of New York Mellon Corporation. |
|
Previously filed as Exhibit 4.2 to the Current Report on Form 8-K (File No. 001-06152), filed on June 16, 2006 by The Bank of New York Company, Inc., and incorporated herein by
reference. |
|
|
|
| 4.14 |
|
Officers’ Certificate for the Senior Medium-Term Notes, Series G of The Bank of New York Mellon Corporation. |
|
Previously filed as Exhibit 4.4 to the Current Report on Form 8-K (File No. 001-06152), filed on June 16, 2006 by The Bank of New York Company, Inc., and incorporated herein by
reference. |
|
|
|
| 4.15 |
|
Form of Global Fixed Rate Note for the Medium-Term Notes, Series E of The Bank of New York Mellon Corporation. |
|
Previously filed as Exhibit 4.1 to the Current Report on Form 8-K (File No. 001-06152), filed on June 26, 2002 by The Bank of New York Company, Inc., and incorporated herein by
reference. |
|
|
|
| 4.16 |
|
Officers’ Certificate for the Senior Medium-Term Notes, Series E of The Bank of New York Mellon Corporation. |
|
Previously filed as Exhibit 4.4 to the Current Report on Form 8-K (File No. 001-06152), filed on June 26, 2002 by The Bank of New York Company, Inc., and incorporated herein by
reference. |
|
|
|
| 4.17 |
|
Form of Global Fixed Rate Note for the Senior Medium-Term Notes, Series I and Senior Subordinated Medium-Term Notes, Series J of The Bank of New York Mellon Corporation. |
|
Filed herewith. |
|
|
|
| 4.18 |
|
Form of Global Floating Rate Note for the Senior Medium-Term Notes, Series I and Senior Subordinated Medium-Term Notes, Series J of The Bank of New York Mellon
Corporation. |
|
Filed herewith. |
|
|
|
| 4.19 |
|
Officers’ Certificate for the Senior Medium-Term Notes, Series I of The Bank of New York Mellon Corporation. |
|
Filed herewith. |
|
|
|
| 4.20 |
|
Officers’ Certificate for the Senior Subordinated Medium-Term Notes, Series J of The Bank of New York Mellon Corporation. |
|
Filed herewith. |
|
|
|
| 4.21 |
|
Form of Deposit Agreement (including form of Depositary Receipt). |
|
To be filed by amendment or pursuant to a Current Report on Form 8-K. |
|
|
|
| 4.22 |
|
Form of Stock Purchase Contract Agreement |
|
To be filed by amendment or pursuant to a Current Report on Form 8-K. |
|
|
|
| 4.23 |
|
Form of Stock Purchase Unit Agreement. |
|
To be filed by amendment or pursuant to a Current Report on Form 8-K. |
|
|
|
| 4.24 |
|
Form of Pledge Agreement. |
|
To be filed by amendment or pursuant to a Current Report on Form 8-K. |
|
|
|
| 4.25 |
|
Form of Warrant. |
|
To be filed by amendment or pursuant to a Current Report on Form 8-K. |
II-12
|
|
|
|
|
| Exhibit No. |
|
Description of Exhibit |
|
Method of Filing |
|
|
|
| 5.1 |
|
Opinion of Kathleen B. McCabe as to validity of the Debt Securities, Preferred Stock, Depositary Shares, Common Stock, Warrants, Stock Purchase Contracts and Stock Purchase Units to
be issued by The Bank of New York Mellon Corporation. |
|
Filed herewith. |
|
|
|
| 12.1 |
|
Computation of Ratio of Earnings to Fixed Charges and Earnings to Fixed Charges and Preferred Stock Dividends. |
|
Filed herewith. |
|
|
|
| 23.1 |
|
Consent of KPMG LLP. |
|
Filed herewith. |
|
|
|
| 23.2 |
|
Consent of Kathleen B. McCabe. |
|
Included in Exhibit 5.1. |
|
|
|
| 24.1 |
|
Powers of Attorney. |
|
Filed herewith. |
|
|
|
| 25.1 |
|
Form T-1 Statement of Eligibility of Deutsche Bank Trust Company Americas to act as trustee under the Senior Indenture, dated as of February 9, 2016, between The Bank of
New York Mellon Corporation and Deutsche Bank Trust Company Americas. |
|
Filed herewith. |
|
|
|
| 25.2 |
|
Form T-1 Statement of Eligibility of Wilmington Trust, National Association to act as trustee under the Senior Subordinated Indenture, dated as of February 9, 2016, between The Bank
of New York Mellon Corporation and Wilmington Trust, National Association. |
|
Filed herewith. |
|
|
|
| 25.3 |
|
Form T-1 Statement of Eligibility of Deutsche Bank Trust Company Americas to act as trustee under the Senior Indenture, dated as of July 18, 1991, between The Bank of New York
Mellon Corporation, successor to The Bank of New York Company, Inc. and Deutsche Bank Trust Company Americas (f/k/a Bankers Trust Company), as Trustee. |
|
Filed herewith. |
II-13
Exhibit 1.2
THE BANK OF NEW YORK MELLON CORPORATION
Senior Medium-Term Notes Series I
Senior Subordinated Medium-Term Notes Series J
DISTRIBUTION AGREEMENT
February [ ], 2016
To
each institution listed on Schedule I hereto
Ladies and Gentlemen:
The Bank of New York Mellon Corporation, a Delaware corporation (the “Company”), confirms its agreement with each institution
listed on Schedule A hereto and any institution appointed as an agent pursuant to Section 17 hereof (each, an “Agent” and, collectively, the “Agents”), with respect to the issue and sale by the Company from
time to time of its Senior Medium-Term Notes Series I and its Senior Subordinated Medium-Term Notes Series J under the Company’s medium-term notes program (the “Program”). For purposes of this Agreement (i) the
Company’s Senior Medium-Term Notes Series I will be referred to as the “Senior Notes,” (ii) the Company’s Senior Subordinated Medium-Term Notes Series J will be referred to as the “Senior Subordinated Notes” and
(iii) the Senior Notes and the Senior Subordinated Notes will be collectively referred to as the “Notes.”
The Senior Notes
are to be issued pursuant to an indenture dated as of February 9, 2016, as it may be supplemented from time to time (the “Senior Indenture”), between the Company and Deutsche Bank Trust Company Americas, as trustee (the
“Senior Trustee”). The Senior Subordinated Notes are to be issued pursuant to an indenture dated as of February 9, 2016, as it may be supplemented from time to time (the “Senior Subordinated Indenture” and, together
with the Senior Indenture, the “Indentures”), between the Company and Wilmington Trust, National Association, as trustee (the “Senior Subordinated Trustee” and, together with the Senior Trustee, the
“Trustees”).
The amount of Notes that may be issued and sold to or through the Agents pursuant to the terms of this
Agreement is unlimited, provided (and it being understood) that the Company will not issue and sell Notes at any time unless such issuance and sale has been authorized under resolutions adopted by the Company’s board of directors.
This Agreement provides both for the sale of Notes by the Company directly to purchasers, in which case the Agents will act as agents of the
Company in soliciting Note purchasers, and (as may from time to time be agreed to by the Company and any Agent or Agents) to such Agent or Agents as principal for resale to purchasers.
The Company has filed with the Securities and Exchange Commission (the “SEC”) (A) an automatic shelf registration
statement (as defined in Rule 405 (“Rule 405”) of the rules and regulations of the SEC (the “1933 Act Regulations”) under the Securities Act of 1933, as
amended (the “1933 Act”)) on Form S-3 (No. 333-[ ]) for the registration of, among other securities, debt
securities, including the Notes, under the 1933 Act, and the offering thereof from time to time in accordance with Rule 415 of the 1933 Act Regulations, (B) the current related prospectus covering, among other securities, the Notes to be
offered under the Program (the “Base Prospectus”), and (C) the current prospectus supplement to the Base Prospectus covering the Notes offered under the Program (the “MTN Prospectus Supplement” and, together
with the Base Prospectus, the “MTN Prospectus”). Such registration statement became effective upon filing pursuant to Rule 462(e) of the 1933 Act Regulations and the Indentures have been qualified under the Trust Indenture Act of
1939, as amended (the “1939 Act”). The Company has filed such post-effective amendments thereto as may be required prior to the acceptance by the Company of an offer for the purchase of any Notes, and each such post-effective
amendment became effective on filing. Such registration statement, at any relevant time, including the amendments thereto to such time, the exhibits and any schedules thereto at such time, the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the 1933 Act at such time and the documents otherwise deemed to be a part thereof or included therein by the 1933 Act Regulations at such time is referred to herein as the “Registration Statement.” If
the Company files any further registration statement for the purpose of registering Notes and in connection with which this Agreement is included or incorporated by reference as an exhibit, then, after such filing, all references to the
“Registration Statement” shall be deemed to refer to such further registration statement. With respect to the offering of Notes under the Program, the MTN Prospectus, including all applicable amendments or supplements thereto and
the pricing supplement relating to the offering of any applicable tranche of Notes under the Program (each, a “Pricing Supplement”), in the form first furnished to the applicable Agent(s) for use in connection with the offering of
such Notes, are referred to herein as the “Prospectus.” The term “preliminary prospectus” means any prospectus, any prospectus supplement and/or pricing supplement used before the acceptance by the Company of an
offer for the purchase of Notes which omitted information to be included upon pricing in a form of prospectus filed with the SEC pursuant to Rule 424(b) of the 1933 Act Regulations. All references to the Registration Statement, the MTN Prospectus,
any preliminary prospectus, and the Prospectus shall also be deemed to include all documents incorporated or deemed to be incorporated by reference therein. For purposes of this Agreement, all references to the Registration Statement, the Prospectus
or any preliminary prospectus, or to any amendment or supplement thereto, shall be deemed to include any copy filed with the SEC pursuant to its Electronic Data Gathering, Analysis and Retrieval system (“EDGAR”).
All references in this Agreement to financial statements and schedules and other information that is “disclosed,”
“contained,” “included” or “stated” (or other references of like import) in the Registration Statement, the Prospectus or any preliminary prospectus shall be deemed to include all such financial statements and schedules
and other information that is incorporated by reference in or otherwise deemed by the 1933 Act Regulations to be a part of or included in the Registration Statement, the Prospectus or such preliminary prospectus, as the case may be. The terms
“amend,” “amendment” or “supplement” as used herein with respect to the Registration Statement, the MTN Prospectus, the Prospectus or any preliminary prospectus shall be deemed to include all documents subsequently
filed with the SEC pursuant to the 1933 Act or the Securities Exchange Act of 1934, as amended (“1934 Act”), that are incorporated by
-2-
reference in or otherwise deemed by the 1933 Act Regulations to be a part of or included in the Registration Statement, the MTN Prospectus, the Prospectus or such preliminary prospectus, as the
case may be.
SECTION 1. Appointment as Agents.
(a) Appointment of Agents. Subject to the terms and conditions stated herein, the Company hereby appoints the Agents as its agents for
the purpose of soliciting purchases of the Notes from the Company by others and agrees that, whenever the Company determines to sell Notes directly to the Agents as principal for resale to others, it will enter into a Terms Agreement (hereafter
defined) relating to such sale in accordance with the provisions of Section 3(b) hereof. The Agents are authorized to appoint sub-agents or to engage the services of any other broker or dealer in connection with the offer or sale of the Notes.
The Company may also sell Notes directly to investors on its own behalf. The Company may offer and sell Notes to or through agents that are not a party to this Agreement and may enter into agreements substantially identical to this Agreement with
other parties with respect to such offers and sales of the Notes.
(b) Best Efforts Solicitations; Rights to Reject Offers. Upon
receipt of instructions from the Company, the Agents will use their reasonable best efforts to solicit purchases of such principal amount of the Notes as the Company and the Agents shall agree upon from time to time during the term of this
Agreement, it being understood that the Company shall not approve the solicitation of purchases of Notes in excess of the amount that shall be authorized by the Company from time to time. The Agents shall have no responsibility for maintaining
records with respect to the aggregate initial offering price of Notes sold, or of otherwise monitoring the availability of Notes for sale, under the Registration Statement, any further registration statement relating to the Notes or otherwise. The
Agents will communicate to the Company, orally or in writing, each offer to purchase Notes, other than those offers rejected by each Agent. Each Agent shall have the right, in its discretion reasonably exercised, to reject any proposed purchase of
Notes, as a whole or in part, and any such rejection shall not be deemed a breach of such Agent’s agreement contained herein. The Company may accept or reject any proposed purchase of the Notes, in whole or in part.
(c) Solicitations as Agent; Purchases as Principal. If agreed upon between an Agent and the Company, such Agent, acting solely as an
agent for the Company and not as principal, will solicit offers for the purchase of Notes. Each Agent shall make reasonable efforts to assist the Company in obtaining performance by each purchaser whose offer to purchase Notes has been solicited by
such Agent and accepted by the Company. The Agents shall not have any liability to the Company in the event any such purchase is not consummated for any reason. The Agent shall not have any obligation to purchase Notes from the Company as principal,
but each Agent may agree from time to time to purchase Notes as principal. However, absent an agreement between an Agent and the Company that such Agent shall be acting solely as an agent for the Company, such Agent shall be deemed to be acting as
principal in connection with any offering of Notes by the Company through such Agent. Any such purchase of Notes by an Agent as principal shall be made pursuant to a Terms Agreement in accordance with Section 3(b) hereof.
-3-
(d) Reliance. The Company and the Agents agree that any Notes the placement of which an
Agent arranges shall be placed by such Agent, and any Notes purchased by an Agent shall be purchased, in reliance on the representations, warranties, covenants and agreements of the Company contained herein and on the terms and conditions and in the
manner provided herein.
SECTION 2. Representations and Warranties.
(a) The Company represents and warrants to the Agents as of the date hereof, as of the time of each acceptance by the Company of an offer for
the purchase of Notes (through an Agent as agent) or as of the time set forth in a Terms Agreement (if the Notes are being purchased by an Agent as principal) (each such time being an “Applicable Time”), as of the date of each
delivery of Notes (whether through an Agent as agent or to an Agent as principal) (the date of each such delivery to an Agent as principal being hereafter referred to as a “Settlement Date”), and as of any time that the Registration
Statement or the Prospectus shall be amended or supplemented (in each case, a “Representation Date”) as follows:
(i) Due Incorporation or Formation. The Company has been duly organized and is validly existing, and is an existing
corporation in good standing, under the laws of the State of Delaware; and The Bank of New York Mellon (the “Bank”) and BNY Mellon, National Association have been duly organized and are validly existing and are duly authorized to
transact business, under the laws of the State of New York and the United States of America, respectively;
(ii) Status
as a Well-Known Seasoned Issuer. (A) At the time of filing the Registration Statement, (B) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the 1933 Act (whether such
amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the 1934 Act or form of prospectus), (C) at the time the Company or any person acting on its behalf (within the meaning, for this
clause only, of Rule 163(c) of the 1933 Act Regulations) made any offer relating to the Notes in reliance on the exemption provided by Rule 163 of the 1933 Act Regulations (“Rule 163”) and (D) at the date hereof, the Company
was and is a “well-known seasoned issuer,” as defined in Rule 405, including not having been and not being an “ineligible issuer,” as defined in Rule 405; the Registration Statement is an “automatic shelf registration
statement,” as defined in Rule 405, and the Notes, since their registration on the Registration Statement, have been and remain eligible for registration by the Company on a Rule 405 “automatic shelf registration statement;” and the
Company has not received from the SEC any notice pursuant to Rule 401(g)(2) of the 1933 Act Regulations objecting to the use of the automatic shelf registration statement form. At the time of filing the Registration Statement, at the earliest time
thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the 1933 Act Regulations) of the Notes and at the date hereof, the Company was not and is not an “ineligible
issuer,” as defined in Rule 405.
-4-
(iii) Registration Statement, Prospectus and Disclosure at Time of Sale.
The Registration Statement has been filed with the SEC not earlier than three years prior to the applicable Representation Date. The Registration Statement has become effective under the 1933 Act and no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act and no proceedings for that purpose or proceedings or examinations pursuant to Sections 8(d), 8(e) or 8A of the 1933 Act against the Company or related to the offering of the Notes or the
Registration Statement have been instituted or are pending or, to the knowledge of the Company, are threatened by the SEC, and any request on the part of the SEC for additional information with respect to the Registration Statement has been complied
with. The Indentures have been duly qualified under the 1939 Act. No order preventing or suspending the use of any preliminary prospectus has been issued by the SEC. The Registration Statement, as of the date that any part thereof has become, or is
deemed to have become, effective under the 1933 Act Regulations complied in all material respects with the requirements of the 1933 Act, the 1933 Act Regulations, the 1939 Act and the rules and regulations of the SEC under the 1939 Act and did not
contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Each preliminary prospectus and the Prospectus deemed to be a part of or
included in the Registration Statement, or filed pursuant to Rule 424 of the 1933 Act Regulations, complied at such time in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. Any filing of the Prospectus and
any supplements thereto required pursuant to Rule 424 of the 1933 Act Regulations will be made in the manner and within the time period required by Rule 424 of the 1933 Act Regulations. Each preliminary prospectus and the Prospectus delivered to the
applicable Agent(s) for use in connection with the offering of Notes are identical to any electronically transmitted copies thereof filed with the SEC pursuant to EDGAR, except to the extent permitted by Regulation S-T. At the date of this Agreement
and at each other Representation Date, neither the MTN Prospectus nor any amendment or supplement thereto included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
Any offer that is a written communication relating to the Notes
made prior to the filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) of the 1933 Act Regulations) has been filed with the SEC in accordance with the
exemption provided by Rule 163 and otherwise complied with the requirements of Rule 163, including, without limitation, the legending requirement, to qualify such offer for the exemption from Section 5(c) of the 1933 Act provided by Rule 163.
As of the Applicable Time with respect to the offering of any applicable tranche of Notes, neither (x) the Issuer General Use
Free Writing Prospectus(es) (as defined below) issued at or prior to the Applicable Time, (y) the Statutory Prospectus (as defined below) as amended or supplemented immediately prior to the Applicable Time and the applicable Final Term Sheet
(as defined in Section 4(b) hereof), if any, relating to the offering of such Notes, all considered together (collectively, the “General Disclosure Package”), nor (z) any individual Issuer Limited Use Free Writing
Prospectus (as defined below), when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
-5-
As used in this subsection (iii) and elsewhere in this Agreement:
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the 1933 Act
Regulations (“Rule 433”), relating to the Notes that (i) is required to be filed with the SEC by the Company, (ii) is a “road show” that constitutes a written communication within the meaning of Rule
433(d)(8)(i), whether or not required to be filed with the SEC, or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Notes or of the offering that does not reflect the final terms, in each case
in the form filed or required to be filed with the SEC or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g) of the 1933 Act Regulations.
“Issuer General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general
distribution to prospective investors.
“Issuer Limited Use Free Writing Prospectus” means any Issuer Free Writing
Prospectus that is not an Issuer General Use Free Writing Prospectus.
“Statutory Prospectus” means the MTN Prospectus
and any preliminary pricing supplement relating to the Notes of a particular tranche.
Each Issuer Free Writing Prospectus, as of its
issue date and at all subsequent times through the completion of the public offer and sale of the Notes or until any earlier date that the Company notified or notifies the Agents as described in Section 4(d), did not, does not and will not
include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein and any preliminary or other prospectus
deemed to be a part thereof that has not been superseded or modified.
Notwithstanding the foregoing, the representations and warranties
in this subsection shall not apply to (i) any statements in or omissions from the Registration Statement, any preliminary prospectus, the General Disclosure Package, any Issuer Free Writing Prospectus, or the Prospectus made in reliance upon
and in conformity with information furnished to the Company in writing by an Agent expressly for use in the Registration Statement, any preliminary prospectus, the General Disclosure Package, any Issuer Free Writing Prospectus, or the Prospectus (it
being agreed that, for purposes of this clause (i) and Section 8 hereof, unless and except as confirmed in writing by one or more Agents in connection with a particular offer and sale of Notes, the only information so furnished by any
Agent as of the date hereof consists of the last two sentences of the fifth paragraph and the entire seventh paragraph under “Plan of Distribution of Medium-Term Notes” in the MTN Prospectus Supplement) or (ii) to that part of the
Registration Statement that shall constitute the Statement of Eligibility under the 1939 Act (the “Form T-1”) of the Trustees.
-6-
(iv) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the General Disclosure Package or the Prospectus, at the time they were or hereafter are filed with the SEC, conformed and will conform in all material respects to the requirements of the 1933 Act and the 1933 Act
Regulations or the 1934 Act and the rules and regulations thereunder (the “1934 Act Regulations”), as applicable, and, when read together with the other information in the General Disclosure Package and the Prospectus, as
applicable, (a) at the date that any part of the Registration Statement has become, or is deemed to have become, effective under the 1933 Act Regulations, (b) at the time the General Disclosure Package and the Prospectus, as applicable,
were first used, (c) at the date hereof and (d) at each other Representation Date, did not and will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were or are made, not misleading.
(v) Material
Change. Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, there has not been any material adverse change, or any development involving a prospective
material adverse change, in the credit-worthiness of the Company and its subsidiaries on a consolidated basis, other than as set forth or contemplated therein.
(vi) No Defaults; Regulatory Approvals. The issue and sale of the Notes and the compliance by the Company with all of
the provisions of the Notes, the Indentures, this Agreement and each applicable Terms Agreement, if any, and the consummation of the transactions contemplated herein and therein will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to the terms of, any indenture, contract,
mortgage, deed of trust, loan agreement, note, lease or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, except as would not result in a material adverse change in the financial condition, shareholders’ equity or results of operations of the Company and its subsidiaries considered as one
enterprise or adversely affect the compliance by the Company with its obligations under this Agreement, the Indentures or the Notes or the validity of the Notes, nor will such action result in any violation by the Company of the provisions of the
Restated Certificate of Incorporation, as amended, or By-Laws, as amended, of the Company, or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or
any of its properties, and no consent, approval, authorization, order, registration or qualification of or with any court or any such regulatory authority or other governmental agency or body is required for the issue and sale of the Notes or the
consummation of the other transactions contemplated by this Agreement or any Terms Agreement or the Indentures, except such as may be required under the 1933 Act, the 1939 Act and the 1933 Act Regulations and such consents, approvals,
authorizations, registrations or qualifications as may be required under state securities or blue sky laws in connection with the purchase and distribution of the Notes by the Agents.
-7-
(vii) Authorization and Validity. On or before each date on which Notes
are issued or sold pursuant to the provisions of this Agreement, such Notes will have been duly authorized by the Company for issuance and sale pursuant to this Agreement and, when issued, authenticated and delivered pursuant to the provisions of
this Agreement and of the Indenture under which the relevant Notes are to be issued against payment of the consideration therefor specified herein, the Notes will constitute valid and legally binding obligations of the Company entitled to the
benefits provided by such Indenture; this Agreement has been duly authorized, executed and delivered by the Company; each Indenture has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding
instrument of the Company, enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting
creditors’ rights and to general equity principles; and the Indentures conform and the Notes of any particular tranche will conform to the descriptions thereof in the General Disclosure Package and the Prospectus.
(viii) Capitalization. All of the issued shares of capital stock of the Bank and BNY Mellon, N.A. have been duly and
validly authorized and issued, are fully paid and non-assessable (except as provided (i) in the case of the Bank, Article III of the Banking Law of the State of New York , and (ii) in the case of BNY Mellon, N.A., 12 U.S.C. § 55) and
are owned by the Company, free and clear of all liens, encumbrances, equities or claims.
(ix) Legal Proceedings.
Except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit or proceeding before or by any court or governmental agency domestic or foreign, now pending or, to the
knowledge of the Company, threatened against or affecting the Company or its subsidiaries that might result in any material adverse change in the financial condition, shareholders’ equity or results of operations of the Company and its
subsidiaries considered as one enterprise.
(x) Ratings. The Senior Notes and the Senior Subordinated Notes are
rated A1 and A2, respectively, by Moody’s Investors Service, Inc. A and A-, respectively, by Standard & Poor’s Ratings Services, or such other ratings as to which the Company shall have most recently notified the Agents pursuant
to Section 4(a) hereof.
(xi) FCPA. The Company has implemented an anti-bribery program including policies and
procedures reasonably designed to ensure, and which are reasonably expected to continue to ensure, compliance with all applicable anti-bribery and anti-corruption laws, including without limitation the Foreign Corrupt Practices Act of 1977 and the
Bribery Act 2010 of the United Kingdom, and will maintain such program, as modified from time to time, during the term of this Agreement. Neither the Company nor
-8-
any of its subsidiaries (as defined in Rule 405 under the Securities Act) nor any director or officer of the Company or any of its subsidiaries, nor, to the knowledge of the Company, any
employee, agent, affiliate or other person associated with or acting on behalf of the Company or any of its subsidiaries (i) has violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended, or committed
an offence under the Bribery Act 2010 of the United Kingdom, or any other applicable anti-bribery or anti-corruption laws; or (ii) has made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful
benefit, except, in each case, as would not, individually or in the aggregate, be material to the Company. The Company will not use the proceeds of the offering of the Securities hereunder in a manner that will, directly or indirectly, violate
applicable anti-bribery laws.
(xii) Money Laundering / Bank Secrecy. The Company has developed and implemented
written policies, procedures and internal controls reasonably designed to ensure, and which are reasonably expected to continue to ensure, compliance with the applicable money laundering statutes (including applicable financial recordkeeping and
reporting requirements) of all jurisdictions where the Company or any of its subsidiaries conducts business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any
applicable governmental or regulatory agency (collectively, the “Anti-Money Laundering Laws”). The operations of the Company and its subsidiaries are in compliance with the Anti-Money Laundering Laws in all material respects and no
action, suit or proceeding by or before any court or governmental or regulatory agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the
knowledge of the Company, threatened.
(xiii) Sanctions. The Company has developed and implemented written policies,
procedures and internal controls reasonably designed to ensure, and which are reasonably expected to continue to ensure, the Company’s compliance with any economic sanctions administered or enforced by the U.S. Government, including, without
limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”), or other relevant economic sanctions authority (collectively, “Sanctions”). Neither the Company nor any of its
subsidiaries, nor any directors or officers of the Company or its subsidiaries, nor, to the knowledge of the Company, any employee, agent or affiliate of the Company or any of its subsidiaries is currently the subject or the target of any Sanctions,
nor is the Company or any of its subsidiaries located, organized or resident in a country or territory that is the subject of economic sanctions or trade restrictions of the United States, the United Kingdom, the European Union, or the United
Nations Security Council that broadly prohibit or restrict dealings with such country (as of the date of this Agreement, including Crimea, Cuba, Iran, North Korea, Sudan, and Syria) (each, a “Sanctioned Country”). The Company will
not directly or knowingly indirectly (after due inquiry) use the
-9-
proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity (i) to
fund or facilitate any activities of or business with any person, or in any country or territory, that, at the time of such funding, is the subject of Sanctions (except as may be authorized, or not prohibited, by the relevant economic sanctions
authority), (ii) to fund or facilitate any activities of or business in any Sanctioned Country (except as may be authorized, or not prohibited, by the relevant economic sanctions authority), or (iii) in any other manner that will result in
a violation of Sanctions by the Company or any person (including any person participating in the transaction, whether as dealer, underwriter, advisor, investor or otherwise).
(b) Additional Certifications. Any certificate signed by any officer of the Company and delivered to the Agents or to counsel for the
Agents in connection with an offering of Notes or the sale of the Notes to the Agent as principal shall be deemed a representation and warranty by the Company to the Agents as to the matters covered thereby on the date of such certificate and at
each Representation Date referred to in Section 2(a) hereof subsequent thereto.
SECTION 3. Solicitations as Agent;
Purchases as Principal.
(a) Solicitations as Agent. On the basis of the representations and warranties herein contained, but
subject to the terms and conditions herein set forth, each Agent agrees, as an agent of the Company, upon receipt of instructions from the Company in accordance with Section 1(b) hereof, to use its reasonable best efforts to solicit offers to
purchase the Notes upon the terms and conditions set forth herein and in the applicable General Disclosure Package and the Prospectus. All Notes sold through an Agent as agent will be sold at 100% of their principal amount unless otherwise agreed to
by the Company and such Agent.
The Company reserves the right, in its sole discretion, to suspend solicitation of purchases of the Notes
through the Agents, as agents, commencing at any time for any period of time or permanently. Upon receipt of instructions from the Company, the Agents will forthwith suspend solicitation of purchases from the Company until such time as the Company
has advised the Agents that such solicitation may be resumed.
The Company and the Agents agree that, without any other action on behalf
of the Company being necessary, the Agents shall suspend (and the Company hereby instructs the Agents to suspend) solicitations of purchases of Notes during each period commencing with the filing by the Company with the SEC of (i) a Quarterly
Report on Form 10-Q and continuing through the 7th business day thereafter and (ii) an Annual Report on Form 10-K and continuing until the 7th business day thereafter, unless with respect to any such period the Company and the Agents or
applicable Agent shall agree otherwise, it being understood that, as a consequence of such suspension (and absent an agreement otherwise by the Company and the Agents or the applicable Agent), the Company shall not be required to comply with the
provisions of subsections (d), (e) or (f) of Section 4 or subsections (b), (c) or (d) of Section 7 until the end of any such applicable period.
-10-
The Company agrees to pay the applicable Agent, acting in its capacity as an agent of the Company
under the Program, a commission equal to a specified percentage, as agreed between the Company and such Agent, of the principal amount of each Note sold by the Company as a result of a solicitation made by such Agent under the Program.
Each Agent may re-allow any portion of the commission payable pursuant hereto to dealers or purchasers in connection with the offer and sale
of any Notes; provided, however, that such Agent shall obtain the prior written consent of the Company to any such reallowance.
(b) Purchases as Principal. Each sale of Notes to an Agent or Agents as principal shall be made in accordance with the terms contained
herein and (unless the Company and such Agent or Agents shall otherwise agree) pursuant to a separate agreement that will provide for the sale of such Notes to, and the purchase and reoffering thereof by, such Agent or Agents. Each such separate
agreement (which may be an oral agreement promptly confirmed in writing as described below) between an Agent or Agents and the Company is herein referred to as a “Terms Agreement.” Unless the context otherwise requires, each
reference contained herein to “this Agreement” shall be deemed to include any applicable Terms Agreement between the Company and an Agent or Agents. Each such Terms Agreement, whether oral (and promptly confirmed in writing, which
may be by facsimile transmission) or in writing, shall be with respect to such information (as applicable) as is specified in Annex I hereto and, if in writing, shall be substantially in the form of Annex I hereto. Such Terms Agreement shall also
specify the requirements, if any, for the opinions of counsel, letters of the Company’s independent registered public accountants and officer’s certificate pursuant to Sections 7(b), 7(c) and 7(d) hereof. Each Agent’s commitment to
purchase Notes as principal pursuant to any Terms Agreement (or otherwise) shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein
set forth.
Each purchase of Notes by the applicable Agents under the Program, unless otherwise agreed in the applicable Terms Agreement,
shall be at a discount from the principal amount of each such Note equivalent to the applicable commission set forth in Schedule A hereto. Each Agent is authorized to utilize a selling or dealer group in connection with the resale of the Notes
purchased; provided, however, that such Agent shall obtain the prior written consent of the Company to such utilization.
(c) Administrative Procedures. The purchase price, interest rate or formula, maturity date and other terms of the relevant Notes shall
be agreed upon by the Company and the applicable Agent and set forth in a Pricing Supplement to be prepared following each acceptance by the Company of an offer for the purchase of Notes. Except as may be otherwise provided in the Pricing
Supplement, the Notes will be issued in denominations of U.S. $1,000 or any amount in excess thereof that is an integral multiple of U.S. $1,000. Administrative procedures with respect to the sale of the relevant Notes shall be agreed upon from time
to time by the Agents and the Company (the “Procedures”), and, as of the date of this Agreement, are as set forth in Annex I. The Agents and the Company agree to perform the respective duties and obligations specifically provided to
be performed by them in the Procedures.
-11-
SECTION 4. Covenants of the Company. The Company covenants with the Agents as
follows:
(a) Notice of Certain Events; Rule 424(b) Filings; Payment of Filing Fees. The Company will notify the Agents as soon as
practicable of (i) the effectiveness of any amendment to the Registration Statement (excluding any document incorporated by reference therein) or the filing of any new registration statement relating to the Notes after the date hereof,
(ii) the filing with the SEC of any supplement to the Prospectus (other than any document incorporated by reference therein or any supplement thereto (x) providing solely for the determination of the variable terms of the Notes or
(y) relating exclusively to an offering of securities other than the Notes), (iii) the receipt of any comments from the SEC with respect to the Registration Statement or the Prospectus, (iv) any request by the SEC for any amendment to
the Registration Statement or any amendment or supplement to the Prospectus or for additional information with respect thereto, (v) the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any
order preventing or suspending the use of any preliminary prospectus, or of the initiation of any proceedings for that purpose or of any examination pursuant to Section 8(e) of the 1933 Act concerning the Registration Statement, (vi) if
the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the Notes, or (vii) any negative change in the rating assigned by any “nationally recognized statistical rating
organization” (as defined for purposes of Section 3(a)(62) of the 1934 Act) to any debt securities (including the Notes) of the Company, or the public announcement by any such nationally recognized statistical rating organization that it
has under surveillance or review, with possible negative implications, its rating of any such debt securities, or the withdrawal by any such nationally recognized statistical rating organization of its rating of any such debt securities. The Company
will effect all filings required under Rule 424(b) of the 1933 Act Regulations, in the manner and within the time period required by Rule 424(b) of the 1933 Act Regulations (without reliance on Rule 424(b)(8) of the 1933 Act Regulations), and will
take such steps as it deems necessary to ascertain promptly whether the form of prospectus (including, without limitation, any Pricing Supplement) transmitted for filing under Rule 424(b) of the 1933 Act Regulations was received for filing by the
SEC and, in the event that it was not, it will promptly file such prospectus (including, without limitation, any Pricing Supplement). The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment. The Company shall pay the required SEC filing fees relating to the Notes within the time required by Rule 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso
therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) of the 1933 Act
Regulations either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b) of the 1933 Act Regulations).
(b) Filing or Use of Amendments and Exchange Act Documents; Final Term Sheets and Pricing Supplements. Prior to the termination of the
offering of the Notes (including by way of resale by a purchaser of Notes purchased pursuant to a Terms Agreement), the Company will not file any registration statement with respect to the registration of additional Notes or any
-12-
amendment to the Registration Statement or any amendment or supplement to any preliminary prospectus (including any prospectus included in the Registration Statement or amendment thereto at the
time it became effective) or to the Prospectus (other than an amendment or supplement (i) providing solely for a change in the interest rate of the Notes or (ii) relating exclusively to an offering of securities other than the Notes)
unless the Company has delivered to the Agents a copy for review a reasonable amount of time prior to filing and will not file any such proposed amendment or supplement to which any of the Agents reasonably objects. The Company will give the
Agent(s) notice of any filings made pursuant to the 1934 Act or the 1934 Act Regulations within 48 hours prior to the Applicable Time; the Company will give the applicable Agent(s) notice of its intention to make any such filing from the Applicable
Time to the related Settlement Date and will furnish such Agent(s) with copies of any such documents a reasonable amount of time prior to such proposed filing, as the case may be, and will not file or use any such document to which such Agent(s) or
counsel for such Agents shall object. For the purposes of clarity, nothing in this Section 4(b) shall restrict the Company from making any filings required in order to comply with its reporting obligations under the 1934 Act or the 1934 Act
Regulations. Unless otherwise notified by the applicable Agent(s), the Company will prepare a final term sheet (the “Final Term Sheet”) reflecting the final terms of an offering of a particular tranche of Notes under the Program, in
form and substance satisfactory to such Agent(s), and shall file such Final Term Sheet as an “issuer free writing prospectus” pursuant to Rule 433 prior to the close of business within two days following the date such final terms are
established.
(c) Copies of the Registration Statement, any Preliminary Prospectus and the Prospectus. The Company will deliver to
the Agents as many signed and conformed copies of the Registration Statement and of each amendment thereto (including exhibits filed therewith or incorporated or deemed to be incorporated by reference therein or otherwise deemed to be a part
thereof) as the Agents may reasonably request. The Company will deliver to each Agent, without charge, as many copies of each preliminary prospectus as such Agent may reasonably request (it being understood that electronic delivery of any such
preliminary prospectus will be sufficient for such Agent’s purposes unless otherwise agreed to by the Company), and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to the
Agents as many copies of the Prospectus (as amended or supplemented) as the Agents shall reasonably request so long as the Agents are required to deliver a Prospectus in connection with sales or solicitations of offers to purchase the Notes. It is
hereby acknowledged that the Company intends to rely on Rule 172 of the 1933 Act Regulations with respect to delivery of the Prospectus.
(d) Prospectus Revisions — Material Change. Except as otherwise provided in subsection (l) of this Section 4, if at any
time during the term of this Agreement any event shall occur or condition exist as a result of which it is necessary to further amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary at any such time to amend or
supplement the Registration Statement (or to file a new registration statement) or the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, immediate notice shall be given by the Company, and
-13-
confirmed in writing, to the Agents to cease the solicitation of offers to purchase the Notes in their capacity as agent and to cease sales of any Notes it may then own as principal, the Company
will promptly prepare and file with the SEC such amendment or supplement, or new registration statement, whether by filing documents pursuant to the 1934 Act, the 1933 Act or otherwise, as may be necessary to correct such untrue statement or
omission or to make the Registration Statement comply with such requirements and the Company will use its reasonable commercial efforts to have such amendment or new registration statement become effective as soon as practicable (if it is not an
automatic shelf registration statement with respect to the Notes) and the Company will furnish to the Agents, without charge, such number of copies of such amendment, supplement or new registration statement as the Agents may reasonably request. If
at any time following issuance of an Issuer Free Writing Prospectus the Company becomes aware of an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the
Registration Statement (or any other registration statement relating to the Notes) or the Prospectus or any preliminary prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Company will promptly notify the Agents and will promptly amend or supplement, at its own expense, such
Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(e) Prospectus Revisions —
Periodic Financial Information. Except as otherwise provided in subsection (l) of this Section 4, on or prior to the date on which there shall be released to the general public interim financial statement information related to the
Company with respect to each of the first three quarters of any fiscal year or preliminary financial statement information with respect to any fiscal year, and prior to the filing of the Forms 10-Q or 10-K with respect to such quarters or fiscal
years, the Company shall furnish such information to the Agents, at their request, and shall cause the Prospectus to incorporate by reference capsule financial information with respect to the results of operations of the Company for the period
between the end of the preceding fiscal year and the end of such quarter or for such fiscal year, as the case may be, and corresponding information for the comparable period of the preceding fiscal year, as well as such other information and
explanations as shall be necessary for an understanding of such amounts or as shall be required by the 1933 Act or the 1933 Act Regulations; provided, however, that this covenant shall not obligate the Company to incorporate financial
information or discussion other than that contained in its regular earnings press release with respect to such quarter or year.
(f)
Prospectus Revisions — Audited Financial Information. Except as otherwise provided in subsection (l) of this Section 4, on or prior to the date on which there shall be released to the general public financial information
included in or derived from the audited financial statements of the Company for the preceding fiscal year, the Company shall cause the Registration Statement and the Prospectus to be amended, whether by the filing of documents pursuant to the 1934
Act, the 1933 Act or otherwise, to include or incorporate by reference such audited financial statements and the report or reports, and consent or consents to such inclusion or incorporation by reference, of the independent accountants with respect
thereto, as well as such other information and explanations as shall be necessary for an understanding of such financial statements or as shall be required by the 1933 Act or the 1933 Act Regulations.
-14-
(g) Earning Statements. The Company will make generally available to its security holders
as soon as practicable, but not later than 60 days after the close of the period covered thereby, an earning statement of the Company and its subsidiaries (which need not be audited) in form complying with the provisions of Rule 158 of the 1933 Act
Regulations, covering each twelve-month period beginning, in each case, not later than the first day of the Company’s fiscal quarter next following the “effective date” (as defined in such Rule 158) of the Registration Statement with
respect to each sale of Notes.
(h) Blue Sky Qualifications. The Company will endeavor, in cooperation with the Agents, to qualify
the Notes for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as the Agents may designate, and will maintain such qualifications in effect for as long as may be required for the
distribution of the Notes; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified. The
Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Notes have been qualified as above provided. The Company will promptly advise the Agents of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Notes for sale in any such state or jurisdiction or the initiating or threatening of any proceeding for such purpose.
(i) 1934 Act Filings. The Company, during the period when the Prospectus is required to be delivered under the 1933 Act in connection
with sales of the Notes, will file promptly all documents required to be filed with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act.
(j) Stand-Off Agreement. Unless otherwise agreed upon between one or more Agents acting as principal and the Company, with respect to
any particular tranche of Notes, between the date of any Terms Agreement relating to such Notes and the related Settlement Date with respect to such Terms Agreement, the Company will not, without the prior consent of such Agents, which consent shall
not be unreasonably withheld, offer or sell in the United States, or enter into any agreement to sell in the United States, any debt securities of the Company (other than such Notes) that are substantially similar to such Notes except as may
otherwise be provided in any such Terms Agreement.
(k) Annual Reports. The Company will furnish to the Agents, at the earliest
time the Company makes the same available to others, copies of its annual reports and other financial reports furnished or made available to the public generally.
(l) Suspension of Certain Obligations. The Company shall not be required to comply with the provisions of subsections (d), (e) or
(f) of this Section 4, or subsections (b), (c) and (d) of Section 7 hereof, during any period from the time (i) the Company shall have suspended solicitation of purchases of the Notes through the Agents pursuant to
Section 3(a) hereof and
-15-
(ii) no Agent shall then hold any Notes purchased from the Company as principal, as the case may be, until the time the Company shall determine that solicitation of offers for the purchase
of Notes should be resumed or an Agent shall subsequently purchase Notes from the Company as principal. With respect to the Company’s delivery obligations under paragraphs (e), (g) and (k) of this Section 4, the Company shall not
be required to deliver or furnish any information, statement, report or other document under any such paragraph if such information, statement, report or other document is publicly available through EDGAR or on the Company’s website.
(m) Issuer Free Writing Prospectuses. The Company represents and agrees that, unless it obtains the prior consent of the Agent(s), and
each Agent represents and agrees, severally and not jointly, that, unless it obtains the prior consent of the Company, it has not made and will not make any offer relating to the Notes that would constitute an “issuer free writing
prospectus” (as defined in Rule 433) or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed with the SEC; provided, however, that prior to the preparation of the Final Term Sheet
in accordance with Section 4(b), the Agents are authorized to use the information with respect to the final terms of the applicable Notes in communications conveying information relating to the applicable offering of Notes to investors. Any
such free writing prospectus consented to by the Company and the Agent(s) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted
Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with
the SEC where required, legending and record keeping. Any Permitted Free Writing Prospectus shall be considered to be an Issuer General Use Free Writing Prospectus unless otherwise agreed to by the Company and the Agent(s).
SECTION 5. Conditions of Obligations. The obligations of the Agents to solicit offers to purchase the Notes as agents of the
Company, the obligations of any purchasers of the Notes sold through the Agents as agents, and any obligation of an Agent to purchase Notes pursuant to a Terms Agreement (or otherwise), will be subject to the accuracy of the representations and
warranties on the part of the Company herein and to the accuracy of the statements of the Company’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all its
covenants and agreements herein contained and to the following additional conditions precedent:
(a) Legal Opinions. On the date
the program commences (the “Commencement Date”), the Agents shall have received the following legal opinions, dated as of the date hereof and in form and substance satisfactory to the Agents:
(1) Opinion of Company Counsel. The opinion of Kathleen B. McCabe, Esq., Chief Securities Counsel to the Company, or
other counsel satisfactory to the Agents, to the effect that:
(i) Each of the Company, the Bank and BNY Mellon, National
Association has been duly incorporated and is an existing corporation, banking corporation, and national bank, respectively (and, in the case of the Corporation, in good standing), under the laws of the State of Delaware, the State of New York, and
the laws of the United States of America, respectively, and the Company has the corporate power and authority to own its properties and conduct its business as described in the Registration Statement and the Prospectus. The Bank of New York Mellon
is duly authorized to transact business under the laws of the State of New York. BNY Mellon, N.A. is a national banking association formed under the laws of the United States and duly authorized thereunder to transact business.
-16-
(ii) Each Indenture has been duly authorized, executed and delivered by the
Company and duly qualified under the 1939 Act and constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
(iii) The Notes have been duly authorized and established by the Company in conformity with the applicable Indenture, and when
the terms of a particular Note and of its issuance and sale have been duly authorized and established by all necessary corporate action on the part of the Company in conformity with such Indenture and such Note has been duly prepared, executed,
authenticated and issued in accordance with such Indenture and delivered against payment in accordance with this Agreement, such Note will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
(iv) All regulatory consents, authorizations, approvals and filings required to be obtained or made by the Company on or prior
to the date of such opinion under the Federal laws of the United States and the laws of the State of New York for the issuance, sale and delivery of the Notes by the Company to or through the Agent, in accordance with this Agreement, have been
obtained or made (except that such counsel need express no opinion with respect to state securities laws).
(v) This
Agreement has been duly authorized, executed and delivered by the Company.
(vi) The execution and delivery by the Company
of the Indentures did not, and of this Agreement do not, and the completion, execution and issuance of each particular Note in accordance with the applicable Indenture, the sale by the Company of such Note in accordance with this Agreement and the
performance by the Company of its obligations under the Indentures, this Agreement and such Note will not, violate the Company’s Restated Certificate of Incorporation or By-Laws, in each case as in effect at the date of such opinion, or violate
any existing Federal law of the United States or law of the State of New York (except that such counsel need express no opinion with respect to federal or state securities laws, other antifraud laws, fraudulent transfer laws, the Employee Retirement
Income
-17-
Security Act of 1974 and laws that restrict transactions between U.S. persons and citizens of foreign countries or other jurisdictions and related laws, and insofar as performance by the Company
of its obligations under such Indenture, this Agreement and the Notes is concerned, such counsel need express no opinion as to bankruptcy, insolvency, reorganization, moratorium and similar laws of general applicability relating to or affecting
creditors’ rights).
(vii) Each part of the Registration Statement, when such part became effective, and the MTN
Prospectus as of its issue date (other than the financial statements and other financial and statistical data therein, as to which such counsel need express no opinion), appeared on their face to be appropriately responsive, in all material respects
relevant to the offering of the Notes, to the requirements of the 1933 Act, the 1939 Act and the applicable rules and regulations of the SEC thereunder; further, nothing which came to such counsel’s attention in the course of such
counsel’s review (as described in such opinion) has caused such counsel to believe that, insofar as relevant to the offering of the Notes, any part of the Registration Statement, when such part became effective, contained any untrue statement
of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the MTN Prospectus, as of its date or the date of such opinion (other than the financial
statements and other financial and statistical data therein, as to which such counsel need express no opinion), contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not misleading; and such counsel does not know of any litigation or any governmental proceeding instituted or threatened against the Company or the Bank that would
be required to be disclosed in the MTN Prospectus and is not so disclosed, and does not know of any documents that are required to be filed as exhibits to the Registration Statement and are not so filed or of any documents that are required to be
summarized in the MTN Prospectus and are not so summarized. Such counsel may state that such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the MTN
Prospectus except for those made under the captions “Description of Debt,” “Plan of Distribution (Conflicts of Interest),” “Description of Medium-Term Notes” and “Plan of Distribution of Medium-Term Notes
(Conflicts of Interest)” in the MTN Prospectus insofar as they relate to provisions of documents therein described and that such counsel does not express any opinion or belief as to the financial statements or other financial and statistical
data contained in the Registration Statement or the MTN Prospectus or as to the Form T-1 of each Trustee.
In providing such opinion, such counsel may
assume, in connection with the opinion set forth in paragraph 5(a)(1)(iii) above, that at the time of issuance, sale and delivery of each particular Note the authorization of the Notes will not have been modified or rescinded and, with respect to
each Note, that such Note will conform to the form of Note examined by such counsel. Such
-18-
counsel may also assume in connection with such opinion that at the time of the issuance, sale and delivery of each particular Note there will not have occurred any change in law affecting the
validity, legally binding character or enforceability of such Note and that the issuance, sale and delivery of such Note, all of the terms of such Note and the performance by the Company of its obligations thereunder will comply with applicable law
and with each requirement or restriction imposed by any court or governmental body having jurisdiction over the Company and will not result in a default under or breach of any agreement or instrument then binding on the Company. Such counsel may
state in rendering the opinion set forth in paragraph 5(a)(1)(iii) above that, as of the date of such opinion, a judgment for money in an action based on Notes denominated in foreign currencies or currency units in a Federal or state court in the
United States ordinarily would be enforced in the United States only in United States dollars and that the date used to determine the rate of conversion of the foreign currency or currency unit in which a particular Note is denominated into United
States dollars will depend upon various factors, including which court renders the judgment. In the case of a Note denominated in a foreign currency, a state court in the State of New York rendering a judgment on such Note would be required under
Section 27 of the New York Judiciary Law to render such judgment in the foreign currency in which the Note is denominated, and such judgment would be converted into United States dollars at the exchange rate prevailing on the date of entry of
the judgment.
(2) Opinion of Counsel to the Agent. The opinion of Cleary Gottlieb Steen & Hamilton LLP,
counsel to the Agents, with respect to such matters as the Agents may reasonably request.
(b) Officer’s Certificate. On the
Commencement Date, the Agents shall have received a certificate of an officer of the Company satisfactory to the Agents, dated as of the date hereof, as to the accuracy of the representations and warranties of the Company herein, as to the
performance by the Company of all of its obligations hereunder to be performed at or prior to the date hereof and as to such other matters as the Agents may reasonably request, and that no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been initiated or threatened by the SEC.
(c) Comfort Letter. On
the Commencement Date, the Agents shall have received a letter from the Company’s independent registered public accountants, dated as of the date hereof and in form and substance satisfactory to the Agents, to the effect set forth in Annex II.
(d) Other Documents and Opinions. At the Commencement Date and at each Settlement Date with respect to any applicable Terms
Agreement, Agents’ counsel shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Notes as herein contemplated; and all proceedings
taken by the Company in connection with the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and substance to Agents’ counsel.
-19-
(e) Conditions to Purchase. Prior to such solicitation or purchase, as the case may be,
other than a purchase by an Agent pursuant to a Terms Agreement:
(i) there shall not have occurred any change, or any
development involving a prospective change, in or affecting the general affairs, management, financial position, shareholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in
the Prospectus, as amended or supplemented at the time of such solicitation or at the time such offer to purchase was made, that, in the judgment of the applicable Agents after consultation with the Company, is material and adverse and that makes
it, in the judgment of the applicable Agents, impracticable to market the Notes or deliver Notes to the purchaser on the terms and in the manner contemplated by the Prospectus, as so amended or supplemented; and
(ii) there shall not have occurred any downgrading in the rating of any debt securities of the Company by any “nationally
recognized statistical rating organization” (as defined for purposes of Section 3(a)(62) of the 1934 Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the
Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating);
except, in each case described in subparagraph (i) or (ii) above, as disclosed to the Agents in writing by the Company prior to such solicitation
or, in the case of a purchaser of Notes, as disclosed to the relevant purchaser before the offer to purchase such Notes was made.
The
Company acknowledges that the Agents shall not have any duty or obligation to exercise the judgment described in subparagraphs (i) and (ii) above on behalf of any purchaser of Notes other than the Agents.
If any condition specified in this Section 5 shall not have been fulfilled when and as required to be fulfilled, this Agreement (or, at
the option of the applicable Agents, any applicable Terms Agreement) may be terminated by the Agents by notice to the Company at any time, and any such termination shall be without liability of any party to any other party, except that Sections
4(g), 8, 9, 10, 13, 14, 16 and 18 hereof shall survive any such termination and remain in full force and effect.
SECTION 6. Delivery of and Payment for Notes Sold through the Agents. Delivery of Notes sold through the Agents as agents
shall be made by the Company to the Agents for the account of any purchaser only against payment therefor in immediately available funds. In the event that a purchaser shall fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, the Agents shall promptly notify the Company and deliver such Note to the Company, and, if an Agent has theretofore paid the Company for such Note, the Company will promptly return such funds to such Agent. If such failure
shall have occurred for any reason other than default by such Agent to perform its obligations under this Agreement, the Company will reimburse such Agent on an equitable basis for its loss of the use of funds during the period when the funds were
credited to the account of the Company.
-20-
SECTION 7. Additional Covenants of the Company. The Company covenants and agrees
with the Agents that:
(a) Reaffirmation of Representations and Warranties. Each acceptance by it of an offer for the purchase of
Notes, and each delivery of Notes to an Agent pursuant to a Terms Agreement, shall be deemed to be an affirmation that the representations and warranties of the Company contained in this Agreement and in any certificate theretofore delivered to an
Agent pursuant hereto are true and correct at the time of such acceptance or sale, as the case may be, and an undertaking that such representations and warranties will be true and correct at the time of delivery to the purchaser or his agent, or to
an Agent, of the Note or Notes relating to such acceptance or sale, as the case may be, as though made at and as of each such time (and it is understood that such representations and warranties shall relate to the Registration Statement and the
Prospectus as amended and supplemented to each such time).
(b) Subsequent Delivery of Certificates. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented (other than by (i) a Pricing Supplement, (ii) an amendment or supplement providing solely for a change in the interest rates of Notes or a change in the principal
amount of Notes remaining to be sold or similar changes or (iii) an amendment or supplement relating exclusively to an offering of securities other than the Notes) or there is filed with the SEC any document incorporated by reference in the
Prospectus (other than (x) any Current Report on Form 8-K relating exclusively to the issuance of securities other than the Notes or (y) unless reasonably requested by any Agent, any Current Report on Form 8-K filed by the Company under
Items 1.01, 2.01, 2.03, 5.02, 5.03, 5.04, 5.05, 5.07, 8.01 or 9.01 thereof) or, if required pursuant to the terms of a Terms Agreement, the Company sells Notes to an Agent pursuant to a Terms Agreement, the Company shall furnish or cause to be
furnished to the Agents forthwith a certificate dated the date of filing with the SEC of such supplement or document, the date of effectiveness of such amendment or the Settlement Date relating to such Terms Agreement, as the case may be, in form
satisfactory to the Agents to the effect that the statements contained in the certificate referred to in Section 5(b) hereof that was last furnished to the Agents are true and correct at the time of such amendment, supplement, filing or sale,
as the case may be, as though made at and as of such time (except that such statements shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to such time and to the General Disclosure Package if in
connection with a sale of Notes pursuant to a Terms Agreement) or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(b) hereof, modified as necessary to relate to the Registration Statement
and the Prospectus as amended and supplemented to the time of delivery of such certificate and to the General Disclosure Package if in connection with a sale of Notes pursuant to a Terms Agreement; provided, however, that if the
Company has suspended solicitation of purchases of the Notes through the Agents pursuant to Section 3(a) hereof, and the Agents shall not hold any Notes as principal, the Company shall not be obligated so to furnish the Agents with a
certificate or certificates until such time as the Company shall determine that the solicitation of purchases of the Notes should be resumed or shall subsequently enter into a new Terms Agreement with an Agent.
-21-
(c) Subsequent Delivery of Legal Opinions. Each time that the Registration Statement or
the Prospectus shall be amended or supplemented (other than by (i) a Pricing Supplement, (ii) an amendment or supplement providing solely for a change in the interest rates of the Notes or a change in the principal amount of Notes
remaining to be sold or similar changes or (iii) an amendment or supplement that relates exclusively to an offering of securities other than the Notes) or there is filed with the SEC any document incorporated by reference in the Prospectus
(other than (x) any Current Report on Form 8-K relating exclusively to the issuance of securities other than the Notes or (y) unless reasonably requested by any Agent, any Current Report on Form 8-K filed by the Company under Items 1.01,
2.01, 2.03, 5.02, 5.03, 5.04, 5.05, 5.07, 8.01 or 9.01 thereof) or, if so indicated in the applicable Terms Agreement, the Company sells Notes to an Agent pursuant to a Terms Agreement, the Company shall furnish or cause to be furnished forthwith to
the Agents and counsel to the Agents a written opinion of Kathleen B. McCabe, Esq., Chief Securities Counsel to the Company, or other counsel satisfactory to the Agents, dated the date of delivery of such opinion, in form satisfactory to the Agents,
of the same tenor as the opinion referred to in Section 5(a)(1) hereof, and such other opinions provided for in Section 5(a) hereof as the Agents may request, but modified, as necessary, to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such opinion and to the General Disclosure Package if in connection with a sale of Notes pursuant to a Terms Agreement, or, in lieu of such opinion, counsel last furnishing such
opinion to the Agents shall furnish the Agents with a letter to the effect that the Agents may rely on such last opinion to the same extent as though it was dated the date of such letter authorizing reliance (except that statements in such last
opinion, shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such letter authorizing reliance and to the General Disclosure Package if in connection with a sale of Notes
pursuant to a Terms Agreement); provided, however, that if the Company has suspended solicitation of purchases of the Notes through the Agents pursuant to Section 3(a) hereof, and the Agents shall not hold any Notes as principal,
the Company shall not be obligated so to furnish the Agents with an opinion or opinions until such time as the Company shall determine that the solicitation of purchases of the Notes should be resumed or shall subsequently enter into a new Terms
Agreement with an Agent.
(d) Subsequent Delivery of Comfort Letters. Each time that the Registration Statement or the Prospectus
shall be amended or supplemented to include additional financial information (other than (i) unless otherwise required by the applicable Terms Agreement, any Current Report on Form 8-K that is filed in connection with the sale of Notes for
purposes of incorporating capsule financial information into the Prospectus or (ii) unless reasonably requested by any Agent, any Current Report on Form 8-K filed by the Company under Items 9.01(a) or 9.01(b) thereof) or there is filed with the
SEC any document incorporated by reference in the Prospectus that contains additional financial information or, if so indicated in the applicable Terms Agreement, the Company sells Notes to an Agent pursuant to a Terms Agreement, the Company shall
cause the Company’s independent registered public accountants forthwith to furnish the Agents a letter, dated the date of filing of such amendment, supplement or document with the SEC (except as provided below with respect to financial
information filed under Item 9.01(a) or 9.01(b) of
-22-
Form 8-K), or the Settlement Date relating to such Terms Agreement or, in the case of any financial information filed under Item 9.01(a) or 9.01(b) of Form 8-K, dated as promptly as
reasonably practicable following the filing of such Form 8-K, as the case may be, in form satisfactory to the Agents, of the same tenor as the portions of the letter referred to in clauses (i) and (ii) of Annex II hereto but modified to
relate to the Registration Statement and the Prospectus as amended and supplemented to the date of such letter and to the General Disclosure Package if in connection with a sale of Notes pursuant to a Terms Agreement, and of the same general tenor
as the portions of the letter referred to in clauses (iii) and (iv) of Annex II hereto with such changes as may be necessary to reflect changes in the financial statements and other information derived from the accounting records of the
Company; provided, however, that if the Registration Statement or the Prospectus is amended or supplemented solely to include financial information as of and for a fiscal quarter, the Company’s independent public accountants may
limit the scope of such letter to the unaudited financial statements included in such amendment or supplement unless any other information included therein of an accounting, financial or statistical nature is of such a nature that, in the reasonable
judgment of the Agents, such letter should cover such other information; provided further, however, that if the Company has suspended solicitation of purchases of the Notes through the Agents pursuant to Section 3(a) hereof, and
the Agents shall not hold any Notes as principal, the Company shall not be obligated so to furnish the Agents with a letter or letters until such time as the Company shall determine that the solicitation of purchases of the Notes should be resumed
or shall subsequently enter into a new Terms Agreement with the Agents in which such letter or letters are required.
SECTION 8. Indemnity and Contribution. (a) The Company will indemnify and hold harmless the Agents against any losses,
claims, damages or liabilities to which the Agents may become subject, under the 1933 Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the Registration Statement, any preliminary prospectus, any Issuer Free Writing Prospectus, any “issuer information” filed or required to be filed pursuant to Rule 433(d) of the 1933
Act Regulations, the Prospectus (or any amendment or supplement thereto) or any other prospectus relating to the Notes, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse the Agents for any legal or other expenses reasonably incurred, as incurred, by the Agents in connection with investigating or
defending any such action or claim; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in the Registration Statement (or any amendment thereto), or any preliminary prospectus, any Issuer Free Writing Prospectus, the Prospectus (or any amendment or supplement thereto) or any other
prospectus relating to the Notes, or any amendment or supplement thereto, in reliance upon and in conformity with written information furnished to the Company by the Agents expressly for use therein (it being agreed that such information only
consists of the information set forth in Section 2(a)(iii) hereof).
-23-
(b) The Agents will indemnify and hold harmless the Company against any losses, claims, damages
or liabilities to which the Company may become subject, under the 1933 Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any amendment thereto), or any preliminary prospectus, any Issuer Free Writing Prospectus, the Prospectus (or any amendment or supplement thereto) or any other prospectus
relating to the Notes, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement (or any amendment thereto), or any preliminary prospectus,
any Issuer Free Writing Prospectus, the Prospectus (or any amendment or supplement thereto) or any other prospectus relating to the Notes, or any amendment or supplement thereto, in reliance upon and in conformity with written information furnished
to the Company by the Agents expressly for use therein (it being agreed that such information only consists of the information set forth in Section 2(a)(iii) hereof); and will reimburse the Company for any legal or other expenses reasonably
incurred, as incurred, by the Company in connection with investigating or defending any such action or claim.
(c) Promptly after receipt
by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify
the indemnifying party in writing of the commencement thereof but the omission so to notify the indemnifying party shall not relieve it from any liability except to the extent that it has been prejudiced in any material respect by such failure or
from any liability that it may have to any indemnified party otherwise than under such subsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party
shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than
reasonable costs of investigation.
(d) If the indemnification provided for in this Section 8 is unavailable to or insufficient to
hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall severally contribute to
the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one
hand and the Agents on the other from the offering of the Notes to which such loss, claim, damage or liability (or action in respect thereof) relates. If, however, the allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required under subsection (c) above and such indemnifying party was prejudiced in a material respect by such failure, then each indemnifying party shall contribute to such
amount paid or payable by such
-24-
indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Agents on the other in
connection with the statements or omissions that resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the
one hand and the Agents on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total commissions or discounts received by the Agents in
respect thereof. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information
supplied by the Company or the Agents and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Agents agree that it would not be just and equitable
if contribution pursuant to this subsection (d) were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (d), the Agents shall not be required to contribute any amount in excess of the amount by which the
total public offering price at which the Notes purchased by or through it were sold exceeds the amount of any damages that the Agents have otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company under this Section 8 shall be in addition to any liability that the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who controls an Agent within the meaning of the 1933 Act; and the obligations of the Agents, under this Section 8 shall be in addition to any liability that the Agents
may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the 1933 Act.
SECTION 9. Payment of Expenses. The Company covenants and agrees with the Agents that, unless otherwise agreed, the Company
will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Notes under the 1933 Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any preliminary prospectus, any Permitted Free Writing Prospectus and the Prospectus and amendments and supplements thereto, the mailing and delivering of copies thereof to you and
dealers; (ii) the fees, disbursements and expenses of counsel to the Agents incurred in connection with the establishment of the program relating to the Notes and incurred from time to time in connection with the transactions
-25-
contemplated hereby; (iii) the cost of typing and reproducing this Agreement, any Terms Agreement, the Indentures, any blue sky memoranda and any other documents in connection with the
offering, purchase, sale and delivery of the Notes; (iv) all expenses in connection with the qualification of the Notes for offering and sale under state securities laws as provided in Section 4(h) hereof, including the reasonable fees and
disbursements of counsel for the Agents incurred from time to time in connection with the transactions contemplated hereby; (v) any fees charged by securities rating services for rating the Notes; (vi) any filing fees incident to any
required review by the Financial Industry Regulatory Authority of the Registration Statement or the terms of the sale of the Notes; (vii) the cost of preparing the Notes; (viii) the fees and expenses of the Trustees and any agent of the
Trustees and the fees and disbursements of counsel for the Trustees in connection with the Indentures and the Notes; (ix) the costs and expenses (including without limitation any damages or other amounts payable in connection with legal or
contractual liability) associated with the reforming of any contracts for sale of the Notes made by the Agent(s) caused by a breach of the representation contained in the third paragraph of Section 2(a)(iii) hereof; and (x) all other costs
and expenses incident to the performance of its obligations hereunder that are not otherwise specifically provided for in this Section 9. It is understood, however, that, except as provided in this Section 9 and Section 8 hereof, the
Agents will pay all of their own costs and expenses, including transfer taxes on resale of any of the Notes by them, and any advertising expenses connected with any offers they may make.
SECTION 10. Representations, Warranties and Agreements to Survive Delivery. All representations, warranties and agreements
contained in this Agreement or any Terms Agreement or in certificates of officers of the Company submitted pursuant hereto or thereto, shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of the
Agents or any controlling person of the Agents, or by or on behalf of the Company, and shall survive each delivery of and payment for any of the Notes.
SECTION 11. Termination.
(a) Termination of this Agreement. This Agreement (excluding any Terms Agreement) may be terminated for any reason at any time, either
by the Company as to any Agent or Agents or by any Agent or Agents as to itself or themselves, upon the giving of 30 days’ written notice of such termination to such Agent or Agents or the Company, as the case may be.
(b) Termination of a Terms Agreement. Each Agent may terminate any Terms Agreement as to itself only (or, in the case of a syndicated
issue, as to the entire syndicate if the bookrunning lead managing Agent(s) so terminate), immediately upon notice to the Company, at any time prior to the Settlement Date relating thereto: (i) if there has been, since the date of such Terms
Agreement or since the respective dates as of which information is given in the Prospectus or the General Disclosure Package, any change, or any development involving a prospective change, in or affecting the general affairs, management, financial
position, shareholders’ equity or results of operations of the Company and its subsidiaries, the effect of which is in the judgment of the applicable Agent after consultation with the Company (or, in the case of a syndicated issue, the judgment
of the bookrunning lead managing Agent(s)) so material
-26-
and adverse as to make it impracticable or inadvisable to proceed with the delivery of the Notes to which such Terms Agreement relates on the terms and in the manner contemplated in the
Prospectus or the General Disclosure Package and such Terms Agreement; or (ii) if subsequent to the date of such Terms Agreement there has occurred any of the following: (A) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (B) a general moratorium on commercial banking activities in New York declared by either Federal or New York State authorities or a banking moratorium by the relevant authority in the country or
countries of origin of any foreign currency or currencies in which the Notes are denominated or payable or a material disruption in commercial banking or securities settlement or clearance services in the United States; or (C) an outbreak or
escalation of hostilities or the declaration by the United States of a national emergency or war or other calamity or crisis, or prospective change in financial, political or economic conditions in the United States or elsewhere having an adverse
effect on the financial markets of the United States, the effect of which shall be such as to make it, in the judgment of the applicable Agent (or, in the case of a syndicated issue, the judgment of the bookrunning lead managing Agent(s)) after
consultation with the Company (or, in the case of a syndicated issue, the judgment of the bookrunning lead managing Agent(s)), impracticable to market the Notes or enforce contracts for the sale of the Notes to which such Terms Agreement relates on
the terms and in the manner contemplated in the Prospectus or the General Disclosure Package and such Terms Agreement; or (iii) if subsequent to the date of such Terms Agreement there has occurred any downgrading in the rating of any debt
securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62) of the 1934 Act), or any public announcement that any such organization has under surveillance or
review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating).
(c) General. In the event of any such termination with respect to an Agent, neither the Company nor such Agent will have any liability
to the other, except that (i) such Agent shall be entitled to any commission earned in accordance with the fourth paragraph of Section 3(a) hereof, (ii) if at the time of termination (a) such Agent shall own any Notes purchased
pursuant to a Terms Agreement with the intention of reselling them or (b) an offer to purchase any of the Notes has been accepted by the Company but the time of delivery to the purchaser or his agent of the Note or Notes relating thereto has
not occurred, the covenants set forth in Sections 4 and 7 hereof shall remain in effect until such Notes are so resold or delivered, as the case may be, and (iii) the provisions of Sections 4(g), 8, 9, 10, 13, 14, 16 and 18 hereof shall remain
in effect.
SECTION 12. Notices. Unless otherwise provided herein, all notices required under the terms and provisions
hereof shall be in writing, either delivered by hand, by overnight mail or by facsimile, and any such notice shall be effective when received at the address specified below.
-27-
If to the Company:
The Bank of New York Mellon Corporation
225 Liberty Street, 21st Floor
New York, New York 10286
Attention: Secretary
Facsimile:
212-635-1269
With a copy to:
The Bank of New York Mellon
Funding and Short Term Investments
101 Barclay St. – 3rd Fl
New York, NY 10286
Attention:
Frank Vasta
Email: frank.vasta@bnymellon.com
Phone No.: 212-815-5542
Facsimile No.: 212-815-6457
If
to the Agents:
Barclays Capital Inc.
745 Seventh Avenue
New York, NY
10019
Attention: Syndicate Registration
Fax: 646-834-8133
BNY Mellon
Capital Markets, LLC
101 Barclay Street, 3W
New York, NY 10286
Attention:
Debt Capital Markets
Facsimile: 212-815-6403
and
BNY Mellon Capital Markets,
LLC
Attn: Operations Department
101 Barclay Street, Third Floor
New York, New York 10286
Facsimile: 724-540-6311
Citigroup Global Markets Inc.
388 Greenwich Street
New York,
New York 10013
Attention: Transaction Execution Group
Facsimile: 646-291-5209
-28-
Credit Suisse Securities (USA) LLC
11 Madison Avenue
New York, NY
10010
Attention: Transaction Management Group
Facsimile: (212) 743-1953
Deutsche Bank Securities Inc.
60
Wall Street
New York, New York 10005
Attention: Debt Capital Markets
Facsimile: 212-797-2202
Goldman,
Sachs & Co.
200 West Street
New York, NY 10282-2198
Attention: Registration Department
J.P. Morgan Securities LLC
383
Madison Avenue
New York, New York 10179
Attention: High Grade Syndicate Desk – 3rd Floor
Facsimile: 212-834-6081
Merrill
Lynch, Pierce, Fenner & Smith Incorporated
50 Rockefeller Plaza, NY1-050-12-01
New York, New York 10020
Attention: High Grade Debt Capital Markets Transaction Management/Legal
Facsimile: 212-901-7881
Morgan
Stanley & Co. LLC
1585 Broadway, 29th Floor
New York, NY 10036
Attn:
Investment Banking Division
Phone: (212) 761-6691
Facsimile: (212) 507-8999
UBS Securities LLC
1285 Avenue
of the Americas
New York, New York 10019
Attention: Fixed Income Syndicate
Facsimile: 203-719-0495
-29-
Wells Fargo Securities, LLC
550 South Tryon Street, 5th Floor
Charlotte, NC 28202
Attention:
Transaction Management
Facsimile: 704-410-0326
or at such other address as such party may designate from time to time by notice duly given in accordance with the terms of this Section 12.
SECTION 13. Governing Law. This Agreement and any Terms Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
SECTION 14. Parties. This Agreement and any Terms Agreement shall inure to the benefit of
and be binding upon the Agents and the Company and their respective successors. Nothing expressed or mentioned in this Agreement or any Terms Agreement is intended or shall be construed to give any person, firm or corporation, other than the parties
hereto and their respective successors and the controlling persons and officers and directors referred to in Section 8 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this
Agreement or any Terms Agreement or any provision herein or therein contained. This Agreement and any Terms Agreement and all conditions and provisions hereof and thereof are intended to be for the sole and exclusive benefit of the parties hereto
and respective successors and said controlling persons and officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Notes shall be deemed to be a successor by
reason merely of such purchase.
SECTION 15. Counterparts. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument.
SECTION 16. Integration. This Agreement supersedes all prior agreements and understandings (whether written or oral) between
the Company and the Agents, or any of them, with respect to the subject matter hereof.
SECTION 17. Additional Agents.
The Company may from time to time nominate any institution as a new Agent hereunder in respect of the Program generally or in relation to a particular tranche of Notes only; in which event, upon confirmation by such institution of an agent accession
letter on the terms satisfactory to such institution, such institution shall become a party hereto, subject as provided below, with all the authority, rights, powers, duties and obligations of an Agent as if originally named as an Agent hereunder;
provided, further, that, in the case of an institution that has become an Agent in relation to a particular tranche of Notes, following the issue of such tranche of Notes, the relevant new Agent shall have no further authority, rights,
powers, duties or obligations except such as may have accrued or been incurred prior to, or in connection with, the issue of such tranche of Notes.
-30-
SECTION 18. No Fiduciary Relationship. The Company acknowledges and agrees that
(i) the purchase and sale of the Notes pursuant to this Agreement, including the determination of the public offering price of the Notes and any related discounts and commissions, are arm’s-length commercial transactions between the
Company, on the one hand, and the Agents, on the other hand, (ii) in connection with the offerings contemplated hereby and the process leading to such transaction each Agent is and has been acting solely as a principal and is not the agent
(except to the extent expressly set forth herein) or fiduciary of the Company or its stockholders, creditors, employees or any other party, (iii) no Agent has assumed or will assume an advisory or fiduciary responsibility in favor of the
Company with respect to the offerings contemplated hereby or the process leading thereto (irrespective of whether such Agent has advised or is currently advising the Company on other matters) and no Agent has any obligation to the Company with
respect to any offering contemplated hereby except the obligations expressly set forth in this Agreement, (iv) the Agents and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from
those of the Company, and (v) no Agent has provided any legal, accounting, regulatory or tax advice with respect to the offerings contemplated hereby and the Company has consulted its own legal, accounting, regulatory and tax advisors to the
extent it deemed appropriate.
-31-
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to the Company an executed counterpart hereof, whereupon this instrument will become a binding agreement between the Agent and the Company in accordance with its terms.
-32-
|
|
|
| Very truly yours, |
|
| THE BANK OF NEW YORK MELLON CORPORATION |
|
|
| By: |
|
|
| Name: |
|
|
| Title: |
|
|
Signature Page to
Distribution Agreement
|
|
|
| Accepted as of the date set forth above: |
|
| BARCLAYS CAPITAL INC. |
|
|
| By: |
|
|
| Name: |
|
|
| Title: |
|
|
|
| BNY MELLON CAPITAL MARKETS, LLC |
|
|
| By: |
|
|
| Name: |
|
|
| Title: |
|
|
|
| CITIGROUP GLOBAL MARKETS INC. |
|
|
| By: |
|
|
| Name: |
|
|
| Title: |
|
|
|
| CREDIT SUISSE SECURITIES (USA) LLC |
|
|
| By: |
|
|
| Name: |
|
|
| Title: |
|
|
|
| DEUTSCHE BANK SECURITIES INC. |
|
|
| By: |
|
|
| Name: |
|
|
| Title: |
|
|
|
|
| By: |
|
|
| Name: |
|
|
| Title: |
|
|
|
| GOLDMAN, SACHS & CO. |
|
|
| By: |
|
|
| Name: |
|
|
| Title: |
|
|
Signature Page to
Distribution Agreement
|
|
|
| J.P. MORGAN SECURITIES LLC |
|
|
| By: |
|
|
| Name: |
|
|
| Title: |
|
|
|
| MERRILL LYNCH, PIERCE, FENNER & SMITH |
| INCORPORATED |
|
|
| By: |
|
|
| Name: |
|
|
| Title: |
|
|
|
| MORGAN STANLEY & CO. LLC |
|
|
| By: |
|
|
| Name: |
|
|
| Title: |
|
|
|
| UBS SECURITIES LLC |
|
|
| By: |
|
|
| Name: |
|
|
| Title: |
|
|
|
|
| By: |
|
|
| Name: |
|
|
| Title: |
|
|
|
| WELLS FARGO SECURITIES, LLC |
|
|
| By: |
|
|
| Name: |
|
|
| Title: |
|
|
Signature Page to
Distribution Agreement
Schedule I
|
|
|
| Barclays Capital Inc. 745 Seventh Avenue
New York, New York 10019 |
|
BNY Mellon Capital Markets, LLC 101 Barclay
Street, 3W New York, New York 10286 |
|
|
| Citigroup Global Markets Inc. 388 Greenwich
Street New York, New York 10013 |
|
Credit Suisse Securities (USA) LLC 11
Madison Avenue New York, New York 10010 |
|
|
| Deutsche Bank Securities Inc. 60 Wall
Street New York, New York 10005 |
|
Goldman, Sachs & Co. 200 West Street
New York, New York 10282 |
|
|
| J.P. Morgan Securities LLC 383 Park Avenue
New York, New York 10179 |
|
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
One Bryant Park New York, New York 10036 |
|
|
| Morgan Stanley & Co. LLC 1585
Broadway New York, New York 10036 |
|
UBS Securities LLC 1285 Avenue of the
Americas New York, New York 10019 |
|
|
| Wells Fargo Securities, LLC 550 South Tryon
Street, 5th Floor Charlotte, North Carolina 28202 |
|
|
Schedule A
|
|
|
|
|
| Term |
|
Commission Rates |
|
|
| Senior Notes |
|
To be agreed |
|
|
| Senior Subordinated Notes |
|
To be agreed |
|
|
ANNEX I
THE BANK OF NEW YORK MELLON CORPORATION
(A Delaware corporation)
Medium-Term Notes
TERMS
AGREEMENT
,
20
The Bank of New York Mellon Corporation
225 Liberty Street
New York, New York 10286
| Re: |
Distribution Agreement dated February [●], 2016 |
Pursuant to Section 3(b) of the above-referenced
Distribution Agreement (the “Distribution Agreement”), and subject to the terms and conditions set forth in the Distribution Agreement and this Agreement, The Bank of New York Mellon Corporation, a Delaware corporation (the
“Company”), agrees to issue and sell to each of the undersigned, for whom [is][are] acting as representative[s] (the “Representative[s]”), and each of the undersigned (collectively, the
“Underwriters”) agrees, severally and not jointly, to purchase from the Company, the principal amount of the Company’s [Senior] [Senior Subordinated] Medium-Term Notes Series [I] /[J] (the “Notes”) set forth
opposite the name of each Underwriter in Schedule I hereto with the terms indicated below. The Company filed with the SEC an automatic shelf registration statement on Form S-3 (No.
No. 333-[ ]) (the “Registration Statement”) and the related prospectus (the “Prospectus”), dated February [●], 2016. The Company
filed a prospectus supplement on February [●], 2016 covering an unlimited amount of [Senior] [Senior Subordinated] Notes offered under the MTN Program (the “Prospectus Supplement”). Capitalized terms used herein and not
defined herein shall have the meaning set forth in the Distribution Agreement.
Total Aggregate Principal Amount of the Notes: $
Interest Rate (Fixed Rate or Floating Rate):
[Initial
Redemption Percentage:]
[[●]-Year Fixed Rate Redemption Price:]
(If floating rate, indicate base rate, spread, other indicative terms)
Date of Maturity:
Price to Public: %
of the principal amount of the Notes
I-1-
Purchase Price: $
Settlement Date and Time: 10:00 a.m., New York City time,
, 20
Applicable Time:
[[●]-Year Fixed Rate Redemption
Commencement Date:]
[Optional Redemption:]
I-2-
Additional Terms:
(1) The Notes shall have the other terms set forth in the Pricing Supplement dated
, 20 to the Prospectus Supplement dated
, 20 and the Prospectus dated
, 20 .
(2)
Schedule II hereto contains certain provisions relating to a default by any of the Underwriters under this Agreement.
(3) The Company and the
Underwriters agree that there shall be [no] [the following] exceptions to Section 4(j) of the Distribution Agreement.
(4) [The delivery of the
certificate referred to in Section 7(b) of the Distribution Agreement, the opinion or opinions of counsel referred to in Section 7(c) of the Distribution Agreement, and the accountants’ letter referred to in Section 7(d) of the
Distribution Agreement, in each case, addressed to each of the Underwriters, and in form and substance reasonably satisfactory to each of the Underwriters, shall be a condition to settlement under this Agreement. In addition to the matters set forth
or referred to in Section 7(c) of the Distribution Agreement, such opinion or opinions of counsel to be delivered under such Section 7(c) shall also include an opinion substantially to the following effect: “Nothing has come to the
attention of such counsel that gives such counsel reason to believe that the General Disclosure Package, as of the Applicable Time (except for the information of an accounting, financial or statistical nature included therein or omitted therefrom,
as to which such counsel need not express any view), contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were
made, not misleading.”]
(5) Each Underwriter, on behalf of itself and each of its affiliates that participates in the initial distribution of the
Notes, severally represents to and agrees with the Company that it and each such affiliate has not offered, sold or delivered and it and they will not offer, sell or deliver, directly or indirectly, any of the Notes or distribute the Prospectus, the
Prospectus Supplement, any preliminary or final pricing supplement or any other offering material relating to the Notes, in or from any jurisdiction except under circumstances that will, to the best of its knowledge, after reasonable inquiry, result
in compliance with the applicable laws and regulations thereof and which will not impose any obligation on the Company except as contained in the Distribution Agreement.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.
I-3-
If the foregoing is in accordance with your understanding, please sign and return a counterpart hereof, whereupon
this Agreement shall constitute a binding agreement between the Company and the Underwriters in accordance with its terms as of the date first above written.
|
|
|
| [NAMES OF UNDERWRITERS ] |
|
|
| By: |
|
[NAME OF REPRESENTATIVE ] |
|
|
| By: |
|
|
| Title: |
|
|
|
|
| By: |
|
|
| Title: |
|
|
|
|
|
| Accepted: |
|
| THE BANK OF NEW YORK MELLON CORPORATION |
|
|
| By: |
|
|
| Title: |
|
|
I-4-
SCHEDULE I
|
|
|
|
|
| Underwriter |
|
Aggregate
Principal
Amount of Notes
to be Purchased |
|
|
|
$ |
|
|
| Total |
|
$ |
|
|
SCHEDULE II
(a) If any Underwriter shall default in its obligation to purchase the Notes that it has agreed to purchase under the Terms Agreement, the
Representatives (or the other Representative if one of the Representatives is a defaulting Underwriter or the non-defaulting Underwriters if the Representatives are defaulting Underwriters) may in their discretion arrange for themselves or another
party or other parties to purchase such Notes on the terms contained in the Terms Agreement. If within thirty-six hours after such default by any Underwriter the Representatives (or the other Representative if one of the Representatives is a
defaulting Underwriter or the non-defaulting Underwriters if the Representatives are defaulting Underwriters) do not arrange for the purchase of such Notes then the Company shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the Representatives (or the other Representative if one of the Representatives is a defaulting Underwriter or the non-defaulting Underwriters if the Representatives are defaulting Underwriters)
to purchase such Notes on such terms. In the event that, within the respective prescribed period, the Representatives (or the other Representative if one of the Representatives is a defaulting Underwriter or the non-defaulting Underwriters if the
Representatives are defaulting Underwriters) notify the Company that they have so arranged for the purchase of such Notes, or the Company notifies the Representatives (or the other Representative if one of the Representatives is a defaulting
Underwriter or the non-defaulting Underwriters if the Representatives are defaulting Underwriters) that it has so arranged for the purchase of such Notes, the Representatives (or the other Representative if one of the Representatives is a defaulting
Underwriter or the non-defaulting Underwriters if the Representatives are defaulting Underwriters) or the Company shall have the right to postpone the Settlement Date and Time for such Notes for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus (in each case, as defined in the Distribution Agreement), as amended or supplemented, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments or supplements to the Registration Statement or the Prospectus which in the opinion of the Representatives (or the other Representative if one of the Representatives is a defaulting Underwriter or the
non-defaulting Underwriters if the Representatives are defaulting Underwriters) may thereby be made necessary. The term “Underwriter” as used in the Terms Agreement shall include any person substituted under this Schedule II with like
effect as if such person had originally been a party to the Terms Agreement with respect to such Notes.
(b) If, after giving effect to
any arrangements for the purchase of the Notes of a defaulting Underwriter or Underwriters by the Representatives (or the other Representative if one of the Representatives is a defaulting Underwriter or the non-defaulting Underwriters if the
Representatives are defaulting Underwriters) and the Company as provided in subsection (a) above, the aggregate principal amount of such Notes which remains unpurchased does not exceed one-eleventh of the aggregate principal amount of the Notes
to be purchased at the Settlement Date and Time, then the Company shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Notes which such Underwriter agreed to purchase under the Terms Agreement relating
to such Notes and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the principal amount of Notes that such Underwriter agreed to purchase under the Terms Agreement) of the Notes of such
defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Notes of a defaulting Underwriter or Underwriters by the
Representatives (or the other Representative if one of the Representatives is a defaulting Underwriter or the non-defaulting Underwriters if the Representatives are defaulting Underwriters) and the Company as provided in subsection (a) above,
the aggregate principal amount of Notes that remains unpurchased exceeds one-eleventh of the aggregate principal amount of the Notes to be purchased at the Settlement Date and Time, as referred to in subsection (b) above, or if the Company
shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase Notes of a defaulting Underwriter or Underwriters, then the Terms Agreement relating to the Notes shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the Company, subject to Section 11(c) of the Distribution Agreement; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
ANNEX II
Pursuant to Section 5(c) of the Distribution Agreement, the Company’s independent registered public accountants shall provide a
comfort letter to the effect that:
(i) They are an independent registered public accounting firm with respect to the Bank
of New York Mellon Corporation and its subsidiaries (together, the “Company”), within the meaning of the Securities Act of 1933 (the Act) and the applicable rules and regulations thereunder adopted by the SEC and applicable standards of
the Public Company Accounting Oversight Board (United States) (the PCAOB);
(ii) In their opinion, the consolidated
financial statements they have audited and incorporated by reference in the Registration Statement comply as to form in all material respects with the applicable accounting requirements of the Act and the Securities Exchange Act of 1934 (the
Exchange Act), as amended and the related rules and regulations adopted by the SEC;
(iii) For the purposes of their
letter, they have read the minutes of meetings of the Board of Directors, Executive Committee, Risk Committee, Finance Committee and Audit Committee of the Company as set forth in the minute books since the date of the latest audited financial
statements included or incorporated by reference in the Registration Statement, officials of the Company having advised them that the minutes of all such meetings through that date were set forth therein;
(iv) For the purposes of their letter, they have performed the procedures specified by the PCAOB for a review of interim
financial information as described in SAS No. 100, Interim Financial Information, on the unaudited consolidated balance sheet, the unaudited consolidated income statement and the unaudited consolidated comprehensive income statement, the
unaudited consolidated statement of cash flows, and the unaudited consolidated statement of changes in equity included in the Company’s quarterly reports on Form 10-Q, each incorporated by reference in the Registration Statement. They have
inquired of certain officials of the Company who have responsibility for financial and accounting matters whether the aforementioned unaudited consolidated financial statements comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act as it applies to Form 10-Q and the related rules and regulations adopted by the SEC;
(v) For
the purposes of their letter, they have performed the following procedures with respect to each month subsequent to the date of the most recent financial statements (other than any capsule information), audited or unaudited, included or incorporated
by reference in the Registration Statement or Prospectus:
| |
i. |
read the incomplete (incomplete in that relevant footnotes, a consolidated statement of comprehensive income, a consolidated statement of cash flows,
and a consolidated statement of changes in equity were not available), unaudited consolidated financial statements of the Company |
II-1-
| |
for any such months (and such same months of the previous year), furnished to us by the Company, officials of the Company and its subsidiaries having advised us that no such financial statements
as of any date or for any period subsequent to the most recent month-end were available; and |
| |
ii. |
inquired of certain officials of the Company who have responsibility for financial and accounting matters whether the incomplete, unaudited consolidated financial statements referred to in (v)(i) above are stated on a
basis substantially consistent with that of the audited consolidated financial statements incorporated by reference in the Registration Statement, except that certain procedures to determine the allowance for credit losses and other than temporary
impairment on securities are performed only at quarter-end and are, therefore, not reflected in the financial statements referred to in (v)(i) above. |
(vi) For the purpose of their letter, their foregoing procedures do not constitute an audit conducted in accordance with the
standards of the PCAOB. Also, they would not necessarily reveal matters of significance with respect to the comments made in the following paragraphs. Accordingly, they make no representations regarding the sufficiency of the foregoing procedures
for purposes of their letter;
(vii) For the purpose of their letter, nothing came to their attention as a result of the
aforementioned procedures that caused them to believe that:
(A) With respect to (iv) above:
(1) Any material modifications should be made to the unaudited consolidated financial statements described in (iv) above,
incorporated by reference in the Registration Statement, for them to be in conformity with generally accepted accounting principles.
(2) The unaudited consolidated financial statements described in (iv) above, do not comply as to form, in all material
respects, with the applicable accounting requirements of the Exchange Act as it applies to Form 10-Q and the related rules and regulations adopted by the SEC
(B) With respect to (v) above:
(1) There was any net increase in consolidated long-term debt or change in consolidated capital stock, which includes both
preferred stock and common stock, other than from share repurchases or share issuances under stock compensation or benefit plans of the Company as compared with the corresponding amounts shown in the latest unaudited consolidated balance sheet
incorporated by reference in the Registration Statement.
II-2-
(2) There were any decreases, as compared with the corresponding period in the
prior year, both of which exclude the determination of the allowance for credit losses and other-than-temporary impairment on securities, in any of the following relating to the Company’s consolidated results: net interest revenue, net income
applicable to the common shareholders, or diluted earnings per share applicable to the common shareholders (it being noted that certain procedures are performed only at quarter-end and are, therefore, not reflected in the monthly income statements).
(viii) They have inquired of certain officials of the Company who have responsibility for financial and accounting matters
whether (a) as of a specified date not more than three days prior to the date of such letter, there was any net increase in consolidated long-term debt or change in consolidated capital stock, which includes both preferred stock and common
stock, other than from share repurchases or share issuances under stock compensation or benefit plans of the Corporation as compared with the corresponding amounts shown in the unaudited consolidated balance sheet as incorporated in the most
recently filed Form 10-Q of the Company, or (b) for the period beginning on the date of the most recent financial statements (other than any capsule information), audited or unaudited, to a specified date not more than three days prior to the
date of such letter, there were any decreases, as compared with the corresponding period in the preceding year, both of which exclude the determination of the allowance for credit losses and other-than-temporary-impairment on securities, in any of
the following relating to the Company’s consolidated results: net interest revenue, net income applicable to common shareholders, or diluted earnings per share applicable to common shareholders. Officials of the Company responded to our inquiry
by advising us that they are unable to determine the consolidated amount of any financial statement line item on a date prior to month-end close.
(ix) In addition to the examination referred to in their reports included or incorporated by reference in the Prospectus and
the limited procedures, inspection of minute books inquiries and other procedures referred to in subparagraph (iii), (iv) and (v) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information specified by the Agent that are derived from the general accounting records of the Company and its subsidiaries and that appear in the Prospectus (excluding documents incorporated by reference), in
exhibits to the Registration Statement specified by the Agent or in documents incorporated by reference in the Prospectus specified by the Agent, and have compared certain of such amounts, percentages and financial information with the accounting
records of the Company and its subsidiaries and have found them to be in agreement.
II-3-
ANNEX III
THE BANK OF NEW YORK MELLON CORPORATION
ADMINISTRATIVE PROCEDURES
FOR MEDIUM-TERM NOTES
(Effective as of February [ ], 2016)
Senior Medium-Term Notes Series I (the “Senior Notes”) and Senior Subordinated Medium-Term Notes Series J (the
“Senior Subordinated Notes” and, together with the Senior Notes, the “Notes”), in each case due one year or longer from date of issue, are to be offered on a continuing basis by The Bank of New York Mellon
Corporation (the “Company”) directly to investors or through each institution named as an agent (each, an “Agent” and, collectively, the “Agents”) in the Distribution Agreement between the Company and the
Agents dated February [ ], 2016 (the “Distribution Agreement”). The Distribution Agreement provides both for the sale of Notes by the Company to the Agents as principal for resale to investors and other
purchasers and for the sale of Notes by the Company directly to investors (as may from time to time be agreed to by the Company and the Agents) in which case the Agents will act as agents of the Company in soliciting Note purchases.
Unless otherwise agreed by the related Agent and the Company, Notes will be purchased by the related Agent as principal. Such purchases will
be made in accordance with terms agreed upon by the related Agent and the Company (which terms may be agreed upon either in writing or orally, with written confirmation prepared by the related Agent and mailed, or transmitted by facsimile to the
Company). If agreed upon by the related Agent and the Company, such Agent, acting solely as agent for the Company and not as principal, will use its best efforts to solicit offers to purchase the Notes. Only those provisions in these Administrative
Procedures that are applicable to the particular role that such Agent will perform shall apply.
The Senior Notes will be issued pursuant
to an Indenture dated as of February 9, 2016, as it may be supplemented from time to time (the “Senior Indenture”), between the Company and Deutsche Bank Trust Company Americas, as trustee (the “Senior Trustee”).
The Senior Subordinated Notes will be issued pursuant to an Indenture dated as of February 9, 2016, as it may be supplemented from time to time (the “Senior Subordinated Indenture” and, together with the Senior Indenture, the
“Indentures”), between the Company and Wilmington Trust, National Association, as trustee (the “Senior Subordinated Trustee” and, together with the Senior Trustee, the “Trustees”). The Bank of New
York Mellon is the paying agent and the authenticating agent for the payment of interest on and principal of, and the authentication of, the Notes (in such capacities, the “Paying Agent” and the “Authenticating
Agent,” respectively), and calculation agent for calculating interest with respect to any Floating Rate Notes (as defined below) (in such capacity, the “Calculation Agent”).
III-1-
The Company has filed a Registration Statement with respect to the Notes with the SEC and has
filed the MTN Prospectus with respect to the offering of Notes under the Program with the SEC pursuant to Rule 424(b) of the 1933 Act Regulations. The MTN Prospectus, including all applicable amendments or supplements thereto, and the pricing
supplement relating to the offering of any applicable tranche of Notes under the Program (each, a “Pricing Supplement”), in the form first furnished to the applicable Agent(s) for use in connection with the offering of such Notes,
are referred to herein as the “Prospectus.”
The Notes will either be issued (a) in book-entry form and represented
by one or more fully registered Notes (each, a “Book-Entry Note”) delivered to The Bank of New York Mellon as custodian for The Depository Trust Company (“DTC”) (in such capacity, the “Bank”), and
recorded in the book-entry system maintained by DTC, or (b) in the event that the foregoing book-entry system is unavailable or the Company otherwise determines to cease maintaining Notes in such book-entry system, in certificated form (each, a
“Certificated Note”) delivered to the investor or other purchaser. Owners of beneficial interests in Notes issued in book-entry form will be entitled to physical delivery of Notes in certificated form equal in principal
amount to their respective beneficial interests only upon certain limited circumstances described in the Prospectus and in each Book-Entry Note.
General procedures relating to the issuance of all Notes are set forth in Part I hereof. Additionally, Notes issued in book-entry form through
DTC will be issued in accordance with the procedures set forth in Part II hereof, and Notes issued in certificated form, if any will be issued in accordance with the procedures set forth in Part III hereof. Capitalized terms used but not otherwise
defined herein shall have the meanings ascribed thereto in the Distribution Agreement, the applicable Indenture or the Notes, as the case may be.
III-2-
PART I: PROCEDURES OF GENERAL APPLICABILITY
|
|
|
|
|
| Date of Issuance/ Authentication: |
|
Each Note will be dated as of the date of authentication by the Authenticating Agent. Each Note shall also bear an original issue date (the “Original Issue Date”). The Original Issue Date shall remain the same for
all Notes subsequently issued upon transfer, exchange or substitution of an original Note regardless of their dates of authentication. |
|
|
| Maturities: |
|
Each Note will mature on a date selected by the investor or other purchaser and agreed to by the Company that is not less than one year from its Original Issue Date; provided, however, that Notes bearing interest at rates determined
by reference to selected indices (“Floating Rate Notes”) will mature on an Interest Payment Date. |
|
|
| Denominations: |
|
Unless otherwise provided in the applicable Notes, the Notes will be issued in denominations of $1,000 and integral multiples of $1,000 in excess thereof. |
|
|
| Base Rates Applicable to Floating Rate Notes: |
|
Unless otherwise indicated in the applicable Pricing Supplement, Floating Rate Notes (except for certain Original Issue Discount Notes) will bear interest at a rate or rates determined by reference to the CMT Rate (the “CMT
Rate Notes”), the Commercial Paper Rate (“Commercial Paper Rate Notes”), the Federal Funds Rate (“Federal Funds Rate Notes”), LIBOR (“LIBOR Notes”), Eleventh District Cost of Funds Rate
(“Eleventh District Cost of Funds Rate Notes”), the Prime Rate (“Prime Rate Notes”), the Treasury Rate (“Treasury Rate Notes”) or the lowest or highest of two or more such rates, as adjusted by the
Spread and/or Spread Multiplier, if any, applicable to such Floating Rate Notes. |
|
|
| Registration: |
|
Unless otherwise indicated in the applicable Pricing Supplement, Notes will be issued in fully registered form. |
|
|
| Repayment/Redemption: |
|
The Notes will be subject to repayment at the option of the Holders thereof in accordance with the terms of the Notes on their respective Optional Repayment Dates, if any. Optional Repayment Dates, if any, will be fixed at the time
of sale of a Note and set forth in the applicable Pricing Supplement and in such Note. If no Optional Repayment Dates are indicated in a Note, such Note will not be repayable at the option of the Holder prior to maturity. |
III-3-
|
|
|
|
|
The Notes will be subject to redemption by the Company on and after their respective Initial Redemption Dates, if any. Initial Redemption Dates, if any, will be fixed at the time of sale of a Note and set forth in the applicable
Pricing Supplement and in such Note. If no Initial Redemption Dates are indicated in a Note, such Note will not be redeemable prior to maturity. |
|
|
| Calculation of Interest: |
|
In the case of Fixed Rate Notes, interest (including payments for partial periods) will be calculated and paid on the basis of a 360-day year of twelve 30-day months. In the case of Floating Rate Notes, interest will be calculated
and paid on the basis of the actual number of days in the interest period divided by 360 with the exception of Treasury Rate Notes and CMT Rate Notes for which interest will be calculated on the basis of the actual number of days in the interest
period divided by the actual number of days in the year. The interest rate on each Floating Rate Note will be calculated by reference to the specified Base Rate or the lowest or highest of two or more specified Base Rates, in either case plus or
minus the applicable Spread, if any, and/or multiplied by the applicable Spread Multiplier, if any. |
|
|
| Method of Offering: |
|
Unless otherwise agreed by the applicable Agent and the company, all Notes purchased during a Weekly Offering (as defined below) shall be purchased by such Agent as principal. On the first Business Day of any week in which the
Company is interested in offering and selling Notes through an Agent, the Company will advise such Agent of the interest rates and other terms on which it is willing to sell Notes of one or more maturities. During such week, such Agent will solicit
offers to purchase the Notes upon the terms specified by the Company. Each offer conforming to the terms of the then applicable postings (as defined below) to purchase Notes received during such week, until 2:00 p.m. (New York City time) on the last
Business Day of such week, as evidenced in an appropriate electronic recordation on such Agent’s computerized trade confirmation system (or similar trade recordation system maintained by or on behalf of the Agent) shall be deemed to be accepted
by the Company |
III-4-
|
|
|
|
|
when so evidenced, up to any applicable maximum principal amount of Notes specified by the Company for such week. Notwithstanding the foregoing, the Company may, at any time, suspend or terminate any such offering of Notes, or may,
at any time, change the interest rate or other offered terms with respect to the Notes; provided, however, that no such suspension, termination or change will affect any offer to purchase Notes previously accepted or deemed to be accepted by the
Company as aforesaid. Unless otherwise agreed by the Company and such Agent, on the last Business Day of such week such Agent shall purchase Notes, as principal, in an amount equal to the total of the offers so accepted or deemed accepted by the
Company during such week. Each Offering of Notes as described in this paragraph is referred to as a “Weekly Offering.” |
|
|
|
|
The Company may also accept offers to purchase notes otherwise than pursuant to a Weekly Offering (a “Negotiated Offering”). |
|
|
| Procedure for Postings: |
|
The Company will periodically contact the Agents for recommended interest rates, coupons or spreads, maturities or other terms (collectively, “postings”) with respect to Notes being offered. When the Company has
determined or changed its postings with respect to Notes being offered, it will promptly advise the Agents. At such times as the Company is not posting, the Agents will not solicit firm offers but may record “indications of interest”
only. |
|
|
| Notification of Parties: |
|
Immediately after acceptance of an offer pursuant to a Negotiated Offering, and by 4:00 p.m. (New York City time) on the last Business Day of a week in which offers pursuant to a Weekly Offering have been accepted, the
Company’s Treasury Department shall advise, in writing, the applicable Trustee, the Paying Agent, the Authenticating Agent and, in the case of Floating Rate Notes, the Calculation Agent of the terms of the Notes for which offers have been
accepted (including the information set forth in Settlement Procedure “A”). |
|
|
| Acceptance and Rejection of Offers from Solicitation as Agents: |
|
If agreed upon by an Agent and the Company, such Agent, acting solely as agent for the Company and not as principal, will solicit purchases of the Notes. Such Agent |
III-5-
|
|
|
|
|
|
|
will communicate to the Company, orally or in writing, immediately after 2:00 p.m. (New York City time) on the last Business Day of the week of any Weekly Offering all offers to purchase Notes received by such Agent
pursuant to such Weekly Offering and accepted or deemed to be accepted by the Company as provided in “Method of Offering,” above, and will also communicate to the Company any other reasonable offer to purchase Notes solicited by such Agent
on an agency basis, other than those offers rejected by such Agent. The applicable Agent has the right, in its discretion reasonably exercised, to reject any proposed purchase of Notes, as a whole or in part, and any such rejection shall not be
deemed a breach of such Agent’s agreement contained in the Distribution Agreement. The Company has the sole right to accept or reject any proposed purchase of the Notes, in whole or in part (other than Notes accepted or deemed accepted by the
Company as provided in “Method of Offering,” above), any such rejection shall not be deemed a breach of the Company’s agreement contained in the Distribution Agreement. Each Agent has agreed to make reasonable efforts to assist the
Company in obtaining performance by each purchaser whose offer to purchase Notes has been solicited by such Agent and accepted by the Company. |
|
|
| Preparation of Pricing Supplement: |
|
If any offer to purchase a Note is accepted by the Company, the Company, with the approval of the applicable Agent, will prepare a Pricing Supplement reflecting the terms of such Note and file such Pricing Supplement
relating to the Note with the Commission in accordance with Rule 424 under the 1933 Act Regulations. Information to be included in the Pricing Supplement shall include: |
|
|
|
|
|
1. |
|
the name of the Company; |
|
|
|
|
|
2. |
|
the title of the securities (which shall indicate that the securities are either Senior Notes or Senior Subordinated Notes); |
|
|
|
|
|
3. |
|
the date of the Pricing Supplement and the date of the Prospectus to which the Pricing Supplement relates; |
III-6-
|
|
|
|
|
|
|
4. |
|
the name of the Agent; |
|
|
|
|
|
5. |
|
whether such Notes are being sold to the Agent as principal or to an investor or other purchaser through the Agent acting as agent for the Company; |
|
|
|
|
|
6. |
|
with respect to Notes sold to the Agent as principal, whether such Notes will be resold by the Agent to investors and other purchasers (i) at 100% of their principal amount or at a fixed public offering price, (ii) some
other specified percentage of their principal amount or (iii) at varying prices related to prevailing market prices at the time of resale to be determined by the Agent; |
|
|
|
|
|
7. |
|
with respect to Notes sold to an investor or other purchaser through the Agent acting as agent for the Company, whether such Notes will be sold at (i) 100% of their principal amount or (ii) at some other specified percentage of
their principal amount; |
|
|
|
|
|
8. |
|
the Agent’s commission or underwriting discount; |
|
|
|
|
|
9. |
|
net proceeds (if determined) to the Company; |
|
|
|
|
|
10. |
|
the Principal Amount (if determined), Original Issue Date, Maturity Date, Initial Redemption Date, if any, Initial Redemption Percentage, if any, Annual Redemption Percentage Reduction, if any, and Optional Repayment Date or
Dates, if any, Optional Repayment Price, if any, and, in the case of Fixed Rate Notes, the Interest Rate, the Interest Payment Date or Dates and, in the case of Floating Rate Notes, whether it is a Regular Floating Rate Note, Floating Rate/Fixed
Rate Note or Inverse Floating Rate Note, the Base Rate or Rates, the Index Maturity (if applicable), the Initial Interest Rate, the Maximum Interest Rate, if any, the Minimum Interest Rate, if any, the Interest Payment Date or Dates, the Initial
Interest Reset Date, the Interest Reset Period, the Interest Reset Month, if any, the Interest Payment Month, |
III-7-
|
|
|
|
|
|
|
|
|
if any, the Interest Payment Period, the Fixed Interest Rate, if any, the Fixed Rate Commencement Date, if any, the Spread and/or Spread Multiplier, if any, LIBOR Currency, if any, the Designated LIBOR Page, if any, the
designated CMT Maturity Index and designated CMT Reuters Page, if any, the Alternate Rate Event Spread, if any, and any other applicable terms; |
|
|
|
|
|
11. |
|
the information with respect to the terms of the Notes set forth below (whether or not the applicable Note is a Book-Entry Note or a Certificated Note) under “Procedures for Notes Issued in Book-Entry Form through DTC –
Settlement Procedures,” items, 2, 3, 6, 7, 8 and 9; and |
|
|
|
|
|
12. |
|
any other provisions of the Notes material to investors or other purchasers of the Notes not otherwise specified in the Prospectus or the Pricing Supplement. |
|
|
|
|
The Company shall use its reasonable commercial efforts to deliver such Pricing Supplement (for delivery by 11:00 a.m. New York City time on the second Business Day following the date of the Company’s acceptance of
the offer for the purchase of Notes) to the applicable Agent(s), the applicable Trustee and the Paying Agent and Authenticating Agent, to the following applicable address: if to the Agents, to: BNY Mellon Capital Markets, LLC, 101 Barclay Street,
3W, New York, NY 10286, Attention: Prospectus Department, Phone: (800) 269-6864, Email: prosuppinfo@bnymellon.com; Citigroup Global Markets Inc., c/o Broadridge Financial Solutions, 1155 Long Island Avenue, Edgewood, NY 11717, Phone: 1-800-831-9146;
Goldman, Sachs & Co., Prospectus Department, 200 West Street, New York, NY 10282, Phone: 1-866-471-2526, Facsimile: (212) 902-9316; J.P. Morgan Securities LLC, 383 Madison Avenue, New York, New York 10179, Attention: High Grade Syndicate Desk
– 8th Floor, Facsimile: 212-834-6081; Morgan Stanley & Co. LLC, 180 Varick Street, New York, NY 10014, Attn: Prospectus Department; Wells Fargo Securities, LLC, Attention: WFS
Customer |
III-8-
|
|
|
|
|
Service, 608 2nd Avenue, South Minneapolis, MN 55402, Telephone: (800) 645-3751, Email: WFSCustomerService@Wellsfargo.com; and for each other Agent to such address (and other contact information) as set forth in Section 12
of the Distribution Agreement; if to the Senior Trustee (in the case of Notes that are Senior Notes): Deutsche Bank Trust Company Americas, Trust and Agency Services 60 Wall Street, 16th Floor, Mail Stop: NYC60-1630, New York, New York 10005, Attn:
Corporates Team, Bank of New York Mellon, Facsimile: (732) 578-4635, with a copy to Deutsche Bank Trust Company Americas, c/o Deutsche Bank National Trust Company, Trust and Agency Services, 100 Plaza One – 6th Floor, MSJCY03-0699, Jersey City,
NJ 07311-3901, Attn: Corporates Team, Bank of New York Mellon, Facsimile: (732) 578-4635; and if to the Senior Subordinated Trustee (in the case of Notes that are Senior Subordinated Notes): Wilmington Trust, National Association., at 1100 North
Market Street, Wilmington, Delaware 19890, Attn: The Bank of New York Mellon Corporation Medium-Term Note Program Administrator, Telephone No.: 302-636-6432, Facsimile: 302-636-4145, email: TMorris@WilmingtonTrust.com; and if to the Paying Agent,
the Authenticating Agent or the Calculation Agent, The Bank of New York Mellon, 101 Barclay Street, New York, New York 10286, Attention: Jesse Espinola, Telephone No.: 212-815-5362, Facsimile: 212-815-5704. |
|
|
|
|
Unless not required by the 1933 Act Regulations, the applicable Agent will cause the Pricing Supplement to be affixed to the Prospectus and delivered to the purchaser of the Note with the trade confirmation. Outdated Pricing
Supplements and the Prospectuses to which they are attached (other than those retained for files) will be destroyed. |
|
|
| Settlement: |
|
The receipt of immediately available funds by the Company in payment for a Note and the authentication and delivery of such Note shall, with respect to such Note, constitute “settlement.” Offers accepted by the Company
will be settled in three Business Days, or at a time as the purchaser, the applicable Agent and the Company shall agree pursuant to the timetable for |
III-9-
|
|
|
|
|
settlement set forth in Parts II and III hereof under “Settlement Procedures” with respect to Book-Entry Notes through DTC and Certificated Notes, respectively (each such date fixed for settlement, a “Settlement
Date”). If procedures A and B of the applicable Settlement Procedures with respect to a particular offer are not completed on or before the time set forth under the applicable “Settlement Procedures Timetable,” such offer
shall not be settled until the Business Day following the completion of settlement procedures A and B or such later date as the purchaser and the Company shall agree. |
|
|
|
|
The foregoing settlement procedures may be modified, with respect to any purchase of Notes by an Agent as principal, if so agreed by the Company and an Agent. |
|
|
| Procedure for Changing Rates or Other Variable Terms: |
|
When a decision has been reached to change the interest rate or any other variable term on any Notes being offered for sale by the Company, the Company will promptly advise the Agents and the Agents will forthwith suspend
solicitation of offers to purchase such Notes on such terms; provided, however, that no such change will affect any offer to purchase Notes previously accepted or deemed to be accepted by the Company as set forth under “Method of
Offering,” above. The Agents will, by telephone, facsimile, email or other mutually acceptable method, provide the Company with recommendations as to the changed interest rates or other variable terms. At such time as the Company advises the
Agents of the new interest rates or other variable terms, the Agents may resume solicitation of offers to purchase such Notes. Until such time, only “indications of interest” may be recorded. Immediately after acceptance by the Company of
an offer to purchase at a new interest rate or new variable term, the Company, the applicable Agent, the Bank and the Authenticating Agent shall follow the procedures set forth under the applicable “Settlement
Procedures.” |
III-10-
|
|
|
| Suspension of Solicitation; Amendment or Supplement: |
|
The Company may instruct the Agents to suspend solicitation of purchases at any time. Upon receipt of such instructions, the Agents will forthwith suspend solicitation of offers to purchase from the Company until such time as the
Company has advised them that solicitation of offers to purchase may be resumed. However, no such suspension will affect any offer to purchase Notes previously accepted or deemed to be accepted by the Company. See the description of suspension or
termination set forth under “Method of Offering,” above. The Company will give the Agents, the applicable Trustee and the Authenticating Agent notice of (i) its intention to file any amendment to the Registration Statement or any amendment
or supplement (other than a Pricing Supplement) to the Prospectus pursuant to the 1933 Act or (ii) the initial press release relating to earnings results for any fiscal period or to significant corporate developments during any period during which
solicitations of offers to purchase Notes has not been suspended. One copy of any such document will be delivered or mailed to the Agents at the address (and other contact information) for the Agents as set forth in Section 12 of the Distribution
Agreement. |
|
|
|
|
The Company and the Agents have agreed that, without any other action on behalf of the Company being necessary, the Agents shall suspend solicitations of purchases of Notes during each period commencing with the filing by the
Company with the Commission of (i) a Quarterly Report on Form 10-Q and continuing through the 7th business day thereafter and (ii) an Annual Report on Form 10-K and continuing until the 7th business day thereafter, unless with respect to any such
period the Company and the Agents or applicable Agent shall agree otherwise, it being understood that, as a consequence of such suspension (and absent an agreement otherwise by the Company and the Agents or the applicable Agent), the Company shall
not be required to comply with the provisions of subsections (d), (e) or (f) of Section 4 of the Distribution Agreement, or subsections (b), (c) or (d) of Section 7 of such same Distribution Agreement, until the end of any such applicable
period. |
III-11-
|
|
|
|
|
In the event that at the time the solicitation of offers to purchase from the Company is suspended (other than to change interest rates or other variable terms) there shall be any offers to purchase Notes that have been accepted by
the Company that have not been settled, the Company will promptly advise the Agents, the applicable Trustee and the Authenticating Agent whether such offers may be settled and whether copies of the Prospectus as theretofore amended or supplemented
as in effect at the time of the suspension may be delivered in connection with the settlement of such orders. The Company will have the sole responsibility for such decision and for any arrangements that may be made in the event that the Company
determines that such orders may not be settled or that copies of such Prospectus may not be so delivered. |
|
|
| Delivery of Prospectus and Applicable Pricing Supplement: |
|
Unless not required by the 1933 Act Regulations, the applicable Agent will cause a copy of the most recent Prospectus, including the appropriate Pricing Supplement, to accompany or precede the earlier of (a) the written confirmation
of a sale sent to an investor or other purchaser or (b) the delivery of Notes to an investor or other purchaser or its agent. |
|
|
| Business Day: |
|
“Business Day” means (i) any day, other than a Saturday, Sunday, legal holiday or other day on which banks in the city of New York are authorized or required by law, regulation or executive order to close or (ii) in
the case where the Interest Rate Basis is LIBOR, a Business Day or any day on which dealings in deposits in the LIBOR Currency (as defined below) are transacted in the London interbank market (a “London Banking Day”). “LIBOR
Currency” means the currency (including composite currencies) specified in the applicable Pricing Supplement as the currency for which LIBOR shall be calculated. If such currency is not specified in the applicable Pricing Supplement, the
LIBOR Currency shall be the U.S. dollar. |
|
|
| Duties of Trustees, Bank, Paying Agent, Authenticating Agent and Calculation Agent: |
|
The Trustees, the Bank, the Paying Agent, the Authenticating Agent and the Calculation Agent each undertake to perform such duties and only such duties as are specifically set forth in these Administrative Procedures (except for the
Calculation Agent and the Trustees) and in the Indenture, as may each thereof from time to time be amended or be supplemented, and no |
III-12-
|
|
|
|
|
implied covenants or obligations shall be read into these Administrative Procedures against the Trustees, the Bank, the Paying Agent, the Authenticating Agent or the Calculation Agent. |
|
|
| Interest: |
|
General. Interest on each Note issued will accrue from the Interest Accrual Date (as defined below) with respect to such Note. Each payment of interest on a Note will include interest accrued through the day preceding, as the
case may be, the Interest Payment Date, the Maturity Date, Redemption Date or Repayment Date (each Maturity Date, Redemption Date or Repayment Date is referred to herein as a “Maturity”). |
|
|
|
|
Regular Record Dates. Unless otherwise specified in the applicable Note, the Regular Record Date with respect to any Interest Payment Date for a Fixed Rate Note shall be the calendar day fifteen days preceding each Interest
Payment Date whether or not such day is a Business Day. Unless otherwise specified in the applicable Note, the Regular Record Date with respect to any Interest Payment Date for any Floating Rate Note shall be the fifteenth calendar day, whether or
not such day is a Business Day, prior to such Interest Payment Date. |
|
|
|
|
Interest Payment Dates. Interest payments will be made on each Interest Payment Date commencing with the first Interest Payment Date following the Original Issue Date; provided, however, the first payment of interest on any
Book-Entry Note originally issued between a Regular Record Date and an Interest Payment Date will occur on the Interest Payment Date following the next succeeding Regular Record Date. |
|
|
|
|
Fixed Rate Notes. The interest payments on Fixed Rate Notes will be made on the days during the term of such Notes specified in the applicable Note and at Maturity. If the Interest Payment Date with respect to any Fixed Rate
Note falls on a day that is not a Business Day, the payment shall be made on the next succeeding Business Day with the same force and effect as if made on such Interest Payment Date and no interest shall accrue on such payment for the period from
and after such Interest Payment Date or the Maturity Date, as the case may be. |
III-13-
|
|
|
|
|
Floating Rate Notes. Unless otherwise specified in the applicable Note, the Interest Payment Date for a Floating Rate Note will be, in the case of Floating Rate Notes that reset daily, weekly or monthly, on the third
Wednesday of each month; in the case of Floating Rate Notes that reset quarterly, on the third Wednesday of January, April, July and October of each year; in the case of Floating Rate Notes that reset semi-annually, on the third Wednesday of the two
months of each year specified in the applicable Pricing Supplement; and in the case of Floating Rate Notes that reset annually, on the third Wednesday of the one month of each year specified in the applicable Pricing Supplement; and, in each case,
on the Maturity Date. If an Interest Payment Date (other than on the Maturity Date) with respect to any Floating Rate Note would otherwise fall on a day that is not a Business Day, such Interest Payment Date will be the following day that is a
Business Day, except that in the case of a LIBOR Note, if such day falls in the next calendar month, such Interest Payment Date will be the preceding day that is a Business Day. If the Maturity Date of any Floating Rate Note falls on a day that is
not a Business Day, the payment of interest, principal or premium (if any) due on such day shall be made on the next succeeding Business Day with the same force and effect as if made on such Maturity Date and no interest shall accrue on such payment
for the period from and after such Maturity Date. |
III-14-
PART II: PROCEDURES FOR NOTES ISSUED IN
BOOK-ENTRY FORM THROUGH DTC
In connection with the qualification of Notes issued in book-entry form for eligibility in the book-entry system maintained by DTC, the
Bank will perform the custodial, document control and administrative functions described below, in accordance with its respective obligations under a Letter of Representations from the Company and the Bank to DTC, with respect to the Program, dated
February 9, 2016 as may be supplemented from time to time, and a Medium Term Note Certificate Agreement between the Bank and DTC, dated April 14, 1989, (the “Certificate Agreement”), and its obligations as a participant in DTC,
including DTC’s Same-Day Funds Settlement System (“SDFS”).
|
|
|
|
|
|
|
|
|
| Issuance: |
|
All Fixed Rate Notes issued in book-entry from through DTC having the same Original Issue Date, interest rate, priority of
payment, terms of redemption or repayment, if any, and Maturity Date (collectively, the “Fixed Rate Terms”) will be represented initially by one or more global securities in fully registered form without coupons; all Floating Rate Notes
issued in book-entry form through DTC having the same Original Issue Date, priority of payment, interest rate basis or bases upon which interest may be determined (each, an “Interest Rate Basis”), which may be one or more of the CMT Rate,
the Commercial Paper Rate, the Treasury Rate, LIBOR, the Eleventh District Cost of Funds Rate, the Federal Funds Rate, the Prime Rate, any other rate set forth by the Company, Initial Interest Rate, Initial Interest Reset Date, Interest Reset
Period, Interest Reset Month, if any, Interest Payment Dates, Interest Payment Month, if any, Interest Payment Period, Fixed Interest Rate, if any, Fixed Rate Commencement Date, if any, Index Maturity, Spread and/or Spread Multiplier, if any,
Minimum Interest Rate, if any, Designated LIBOR Page, if any, designated CMT Maturity Index and designated CMT Reuters Page, if any, LIBOR Currency, if any, terms of redemption or repayment, if any, terms of redemption or repayment, if any, and
Maturity Date (collectively, “Floating Rate Terms”) will be represented initially by one or more Book-Entry Notes. |
|
|
|
|
Each Book-Entry Note will be dated and issued as of the date of its authentication by the Authenticating Agent. Each Book-Entry
Note will bear interest from a date (the “Interest Accrual Date”) that will be (a) with respect to an original Book-Entry Note (or any portion thereof), its |
III-15-
|
|
|
|
|
|
|
|
|
|
|
Original Issue Date and (b) with respect to any Book-Entry Note (or portion thereof) issued subsequently upon exchange or transfer of a Book-Entry Note or in lieu of a destroyed, lost or stolen Book-Entry Note, the most
recent Interest Payment Date to which interest has been paid or duly provided for on the predecessor Book-Entry Note or Notes (or if no such payment or provision has been made, the original Issue Date of the predecessor Book-Entry Note or Notes),
regardless of the date of authentication of such subsequently issued Book-Entry Note. No Book-Entry Note shall represent any Certificated Note. |
|
|
| Identification: |
|
The Company has arranged with the CUSIP Service Bureau of Standard & Poor’s (the “CUSIP Service Bureau”) for
the reservation of approximately 900 CUSIP numbers for the Program that have been reserved for future assignment to Book-Entry Notes representing Notes issued in book-entry form and have delivered to the Company, the Authenticating Agent and DTC an
initial written list of such CUSIP numbers. The Authenticating Agent will assign CUSIP numbers to Book-Entry Notes. DTC will notify the CUSIP Service Bureau periodically of the CUSIP numbers that the Authenticating Agent has assigned to Book-Entry
Notes. The Authenticating Agent will notify the Company at any time when fewer than 100 of the reserved CUSIP numbers remain unassigned to Book-Entry Notes, and, if it deems necessary, the Company will reserve additional CUSIP numbers for assignment
to Book-Entry Notes. Upon obtaining such additional numbers, the Company will deliver a list of such additional numbers to the Authenticating Agent and DTC. Book-Entry Notes having an aggregate principal amount in excess of $500,000,000 and
otherwise required to be represented by the same Global Certificate will instead be represented by two or more Global Certificates that shall be assigned the same CUSIP number. |
III-16-
|
|
|
|
|
|
|
|
|
|
|
| Registration: |
|
Each Book-Entry Note will be registered in the name of Cede & Co., as nominee for DTC, on the register maintained by the Security Registrar under the Indenture. The beneficial owner of a Note issued in book-entry
form in the United States (i.e., an owner of a beneficial interest in a Book-Entry Note), or one or more indirect participants in DTC designated by such owner, will designate one or more participants in DTC (with respect to such Note issued in
book-entry form, the “Participants”) to act as agent for such beneficial owner in connection with the book-entry system maintained by DTC, and DTC will record in book-entry form, in accordance with instructions provided by such
Participants, a credit balance with respect to such Note issued in book-entry form in the account of such Participants. The ownership interest of such beneficial owner in such Note issued in book-entry form will be recorded through the records of
such Participants or through the separate records of such Participants and one or more indirect participants in DTC. |
|
|
| Transfers: |
|
Transfers in the United States of beneficial interests in a Book-Entry Note will be accomplished by book entries made by DTC and, in turn, by Participants (and in certain cases, one or more indirect participants in DTC)
acting on behalf of transferor and transferees of beneficial interests in such Book-Entry Note. |
|
|
| Exchanges: |
|
The Bank may deliver to DTC and the CUSIP Service Bureau at any time a written notice specifying (a) the CUSIP numbers of two or more Book-Entry Notes outstanding on the date of such notice that represent Book-Entry
Notes having the same Fixed Rate Terms or Floating Rate Terms, as the case may be, other than Original Issue Dates, and for which interest has been paid to the same date; (b) a date, occurring at least 30 days after such written notice is delivered
and at least 30 days before the next Interest Payment Date for the related Notes issued in book-entry form, on which such Book-Entry Notes shall be exchanged for a single replacement Book-Entry Note; and (c) a new CUSIP number to be assigned to such
replacement Book-Entry Note. Upon receipt of such a notice, DTC will send to its Participants (including the Bank) a written reorganization notice to the effect that such exchange will occur on such date. Prior
to |
III-17-
|
|
|
|
|
|
|
|
|
|
|
the specified exchange date, the Bank will deliver to the CUSIP Service Bureau written notice setting forth such exchange date and the new CUSIP number and stating that, as of such exchange date, the CUSIP numbers of the
Book-Entry Notes to be exchanged will no longer be valid. On the specified exchange date, the Bank will exchange such Book-Entry Notes for a single Book-Entry Note bearing the new CUSIP number and the CUSIP numbers of the exchanged Book-Entry Notes
will, in accordance with CUSIP Service Bureau procedures, be canceled and not immediately reassigned. Notwithstanding the foregoing, if the Book-Entry Notes to be exchanged exceed $500,000,000 in aggregate principal amount, one replacement
Book-Entry Note will be authenticated and issued to represent each $500,000,000 of principal amount of the exchanged Book-Entry Notes and an additional Book-Entry Note will be authenticated and issued to represent any remaining principal amount of
such Book-Entry Notes (See “Denominations” below). |
|
|
| Denominations: |
|
Unless otherwise specified in the applicable Note, all Notes issued in book-entry form will be denominated in U.S. dollars. Book-Entry Notes denominated in U.S. dollars will be denominated in principal amounts not in
excess of $500,000,000. |
|
|
| Payments of Principal and Interest: |
|
Payments of Interest Only. Promptly after each Regular Record Date, the Bank will deliver to the Company and DTC a written notice specifying by CUSIP number the amount of interest to be paid on each Book-Entry
Note issued under the Indenture on the following Interest Payment Date (other than an Interest Payment Date coinciding with the Maturity Date) and the total of such amounts. DTC will confirm the amount payable on each Book-Entry Note on such
Interest Payment Date by reference to the daily bond reports published by Standard & Poor’s. On such Interest Payment Date, the Company will pay to the Paying Agent, and the Paying Agent in turn will pay to DTC such total amount of interest
due (other than at Maturity), at the times and in the manner set forth below under “Manner of Payment.” |
III-18-
|
|
|
|
|
|
|
|
|
|
|
|
|
Notice of Interest Rates. Promptly after each Interest Determination Date for Floating Rate Notes issued in book-entry form, the Company will notify Standard & Poor’s of the interest rates determined on
such Interest Determination Date. |
|
|
|
|
Payments at Maturity. On or about the first Business Day of each month, the Paying Agent and Authenticating Agent will deliver to the Company and DTC a written list of principal, interest and premium, if any, to
be paid on each Book-Entry Note issued having a Maturity Date in the following month. The Paying Agent, the Company and DTC will confirm the amounts of such principal, premium and interest payments with respect to a Book-Entry Note on or about the
fifth Business Day preceding the Maturity Date of such Book-Entry Note. At such Maturity Date, the Company will pay to the Paying Agent, and the Paying Agent in turn will pay to DTC the principal amount of such Note, together with such premium and
interest, at the times and in the manner set forth below under “Manner of Payment.” Promptly after payment to DTC of the principal, interest and premium, if any, due at the Maturity Date of such Book-Entry Note, the Authenticating Agent
will cancel and dispose of such Book-Entry Note and deliver to the Company a certificate of disposition therefor. |
|
|
|
|
Manner of Payment. The total amount of any principal, premium, if any, and interest due on Book-Entry Notes on any Interest Payment Date or at Maturity shall be paid by the Company to the Paying Agent in funds
available for use by such Paying Agent as of 9:30 a.m., New York City time, on such date. The Company will make such payment on such Book-Entry Notes by instructing the Paying Agent to withdraw funds from an account maintained by the Company at the
Paying Agent. The Company will confirm such instructions in writing to the Paying Agent. Prior to 10:00 a.m., New York City time, on such date or as soon as possible thereafter, the Paying Agent will pay by separate wire transfer (using Fedwire
message entry instructions in a form previously specified by DTC) to an account at the Federal Reserve Bank of New York previously specified by DTC, in funds available for immediate use by DTC, each payment of principal (together with interest and
premium, if any) due |
III-19-
|
|
|
|
|
|
|
|
|
|
|
on a Book-Entry Note on such date. Thereafter on such payment date, DTC will pay, in accordance with its operating procedures then in effect, such amounts in funds available for immediate use to the respective
Participants in whose names such Notes are recorded in the book-entry system maintained by DTC. |
|
|
|
|
Withholding Taxes. The amount of any taxes required under applicable law to be withheld from any interest payment on a Note will be determined and withheld by the Participant, indirect participant in DTC or other
Person responsible for forwarding payments and materials directly to the beneficial owner of such Note. |
|
|
| Settlement Procedures: |
|
Settlement Procedures with regard to each Book-Entry Note purchased by an Agent, as principal, or sold by an Agent, as agent of the Company, will be as follows: |
|
|
|
|
|
A. |
|
The applicable Agent will advise the Company by telephone, email or facsimile transmission (or other mutually acceptable method) of the following Settlement information: |
|
|
|
|
|
|
|
|
1. |
|
Taxpayer identification number of the purchaser. |
|
|
|
|
|
|
|
|
2. |
|
Principal amount of the Note. |
|
|
|
|
|
|
|
|
3. |
|
Fixed Rate Notes: |
|
|
|
|
|
|
|
|
|
|
|
(a) |
|
interest rate. |
|
|
|
|
|
|
|
|
|
|
Floating Rate Notes: |
|
|
|
|
|
|
|
|
|
|
|
(a) |
|
base rate or rates; |
|
|
|
|
|
|
|
|
|
|
|
(b) |
|
initial interest rate; |
|
|
|
|
|
|
|
|
|
|
|
(c) |
|
spread or spread multiplier, if any; |
|
|
|
|
|
|
|
|
|
|
|
(d) |
|
initial interest reset date; |
|
|
|
|
|
|
|
|
|
|
|
(e) |
|
interest reset period; |
|
|
|
|
|
|
|
|
|
|
|
(f) |
|
interest payment dates; |
III-20-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(g) |
|
interest reset month, if any; |
|
|
|
|
|
|
|
|
|
|
|
(h) |
|
interest payment month, if any; |
|
|
|
|
|
|
|
|
|
|
|
(i) |
|
interest payment period; |
|
|
|
|
|
|
|
|
|
|
|
(j) |
|
fixed interest rate, if any; |
|
|
|
|
|
|
|
|
|
|
|
(k) |
|
fixed rate commencement date, if any; |
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
index maturity; |
|
|
|
|
|
|
|
|
|
|
|
(m) |
|
maximum interest rate, if any; |
|
|
|
|
|
|
|
|
|
|
|
(n) |
|
minimum interest rate, if any; |
|
|
|
|
|
|
|
|
|
|
|
(o) |
|
LIBOR currency, if any; |
|
|
|
|
|
|
|
|
|
|
|
(p) |
|
the designated LIBOR page, if any; |
|
|
|
|
|
|
|
|
|
|
|
(q) |
|
the designated CMT Maturity Index and designated CMT Reuters Page, if any; |
|
|
|
|
|
|
|
|
|
|
|
(r) |
|
any other applicable terms. |
|
|
|
|
|
|
|
|
4. |
|
Price to public, if any, of the Note (or whether the Note is being offered at varying prices relating to prevailing market prices at time of resale as determined by the applicable Agent). |
|
|
|
|
|
|
|
|
5. |
|
Trade date. |
|
|
|
|
|
|
|
|
6. |
|
Settlement Date (Original Issue Date) (the third Business Day after closing). |
|
|
|
|
|
|
|
|
7. |
|
Maturity Date. |
|
|
|
|
|
|
|
|
8. |
|
Whether the Notes are Senior Notes or Senior Subordinated Notes. |
|
|
|
|
|
|
|
|
9. |
|
Redemption provisions, if any: |
|
|
|
|
|
|
|
|
|
|
|
(a) |
|
Initial Redemption Date |
III-21-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(b) |
|
Initial Redemption Percentage |
|
|
|
|
|
|
|
|
|
|
|
(c) |
|
Annual Redemption Percentage Reduction. |
|
|
|
|
|
|
|
|
10. |
|
Optional Repayment Date(s) and Optional Repayment Price, if any. |
|
|
|
|
|
|
|
|
11. |
|
Net proceeds to the Company. |
|
|
|
|
|
|
|
|
12. |
|
The Agent’s discount or commission, as the case may be. |
|
|
|
|
|
|
|
|
13. |
|
Whether such Notes are being sold to the Agent as principal or to an investor or other purchaser through the offering Agent acting as agent for the Company. |
|
|
|
|
|
|
|
|
14. |
|
Whether such Note is being issued with Original Issue Discount (“OID”), and the terms thereof. |
|
|
|
|
|
|
|
|
15. |
|
Such other information specified with respect to the Notes (whether by Addendum or otherwise). |
|
|
|
|
|
B. |
|
The Company will advise the applicable Trustee, the Authenticating Agent and the Calculation Agent (with respect to Floating Rate Notes) by telephone, email or facsimile transmission or other method acceptable to the
applicable Trustee, the Authenticating Agent and the Calculation Agent (with respect to Floating Rate Notes) of the above Settlement information received with respect to each Note from the applicable Agent. The Company also shall provide to the
applicable Trustee, the Authenticating Agent and the Calculation Agent (with respect to Floating Rate Notes) a copy of the applicable Pricing Supplement or provide notification of its filing on EDGAR. |
|
|
|
|
|
C. |
|
The Authenticating Agent will assign a CUSIP number to the Book-Entry Note and advise the Company of such number by telephone, email or facsimile transmission (or other mutually acceptable method). The Bank will
communicate to DTC through DTC’s Participating Terminal System and to the applicable Agent by telephone, email or |
III-22-
|
|
|
|
|
|
|
|
|
|
|
|
|
facsimile transmission (or other mutually acceptable method), a pending deposit message specifying the following settlement information: |
|
|
|
|
|
|
|
|
1. |
|
The information set forth in Settlement Procedure A. |
|
|
|
|
|
|
|
|
2. |
|
Identification numbers of the participant accounts maintained by DTC on behalf of the Bank and the applicable Agent. |
|
|
|
|
|
|
|
|
3. |
|
Identification as a Fixed Rate Book-Entry Note or Floating Rate Book-Entry Note. |
|
|
|
|
|
|
|
|
4. |
|
The initial Interest Payment Date for such Note, number of days by which such date succeeds the related record date for DTC purposes (or, in the case of Floating Rate Notes that reset daily or weekly, the date five
calendar days preceding the Interest Payment Date) and, if then calculable, the amount of interest payable on such Interest Payment Date (which amount shall have been confirmed by the Bank). |
|
|
|
|
|
|
|
|
5. |
|
CUSIP number of the Book-Entry Note representing such Note. |
|
|
|
|
|
|
|
|
6. |
|
Whether such Book-Entry Note represents any other Notes issued or to be issued in book-entry form. |
|
|
|
|
|
D. |
|
The Company will deliver to the Authenticating Agent a Book-Entry Note representing such Note in a form that has been approved by the Company, the applicable Agent, the applicable Trustee and the Authenticating
Agent. |
|
|
|
|
|
E. |
|
The Authenticating Agent, pursuant to a Company Order then in effect, will complete and authenticate the Book-Entry Note representing such Note. |
|
|
|
|
|
F. |
|
DTC will credit such Book-Entry Note to the participant account of the Bank maintained by DTC. |
III-23-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
G. |
|
The Bank will enter an SDFS deliver order through DTC’s Participant Terminal System instructing DTC (i) to debit such Book-Entry Note to the Bank’s participant account and credit such Book-Entry Note to the
participant account of the Agent maintained by DTC and (ii) to debit the settlement account of the applicable Agent and credit the settlement account of the Bank maintained by DTC, in an amount equal to the price of such Book-Entry Note less
Agent’s discount or underwriting commission, as applicable. Any entry of such a delivery order shall be deemed to constitute a representation and warranty by the Bank to DTC that (i) the Book-Entry Note representing such Note has been issued
and authenticated and (ii) the Bank is holding such Book-Entry Note pursuant to the Certificate agreement between the Bank and DTC. |
|
|
|
|
|
H. |
|
In the case of Notes sold through an Agent, as agent, such Agent will enter an SDFS deliver order through DTC’s Participant Terminal System instructing DTC (i) to debit such Book-Entry Note to such
Agent’s participant account of the Participants maintained by DTC and (ii) to debit the settlement accounts of such Participants and credit the settlement account of such Agent maintained by DTC, in an amount equal to the initial public
offering price of such Book-Entry Note. |
|
|
|
|
|
I. |
|
Transfers of funds in accordance with SDFS deliver orders described in Settlement Procedures G and H will be settled in accordance with SDFS operating procedures in effect on the Settlement Date. |
|
|
|
|
|
J. |
|
The Bank will credit to an account of the Company maintained at the Bank funds available for immediate use in the amount transferred to the Bank in accordance with Settlement Procedure G. |
|
|
|
|
|
K. |
|
The Authenticating Agent will, upon request, send a copy of the Book-Entry Note by first class mail to the Company and the applicable Trustee together with a statement setting forth the principal amount of Notes
Outstanding as of the related Settlement Date after giving effect to such transaction and all other offers to purchase Notes of which the Company has advised the Authenticating Agent but which have not been settled. |
III-24-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
L. |
|
If the Note was sold through an Agent, as agent, such Agent will confirm the purchase of such Book-Entry Note to the investor or other purchase either by transmitting to the Participant with respect to such Note a
confirmation order through DTC’s Participant Terminal System or by mailing a written confirmation to such investor or other purchaser. |
|
|
| Settlement Procedures Timetable: |
|
For offers to purchase Notes accepted by the Company, Settlement Procedures “A” through “L” set forth above shall be completed as soon as possible but not later than the respective times (New York
City time) set forth below: |
|
|
|
|
|
|
|
|
| |
|
Settlement
Procedure |
|
Time |
|
|
A |
|
11:00 a.m. on the trade date or within one hour following the trade |
|
|
B |
|
12:00 noon on the trade date or within one hour following the trade |
|
|
C |
|
2:00 p.m. on the trade date or within one hour following the trade |
|
|
D |
|
3:00 p.m. on the Business Day immediately preceding Settlement Date |
|
|
E |
|
9:00 a.m. on Settlement Date |
|
|
F |
|
10:00 a.m. on Settlement Date |
|
|
G-H |
|
No later than 2:00 p.m. on Settlement Date |
|
|
I |
|
4:00 p.m. on Settlement Date |
|
|
J-L |
|
5:00 p.m. on Settlement Date |
|
|
|
|
Settlement Procedure I is subject to extension in accordance with any extension of Fedwire closing deadlines and in the other events specified in the SDFS operating procedures in effect on the Settlement Date. |
|
|
|
|
If the settlement of a Book-Entry Note is rescheduled or canceled, the Company shall notify the Bank thereof and the Bank will deliver to DTC, through DTC’s Participant Terminal System, a cancellation message to
such effect by no later than 2:00 p.m., New York City time, on the Business Day immediately preceding the scheduled Settlement Date. |
III-25-
|
|
|
|
|
|
|
|
|
|
|
|
|
| Failure to Settle: |
|
|
|
|
|
If the Bank has not entered an SDFS deliver order with respect to a Book-Entry Note pursuant to Settlement Procedure G, then upon written request (which may be evidenced by facsimile transmission) of the Company, the
Bank shall deliver to DTC, through DTC’s Participant Terminal System, as soon as practicable a withdrawal message instructing DTC to debit such Note to the participant account of the Bank maintained at DTC. DTC will process the withdrawal
message, provided that such participant account contains a principal amount of the Book-Entry Note representing such Note that is at least equal to the principal amount to be debited. If withdrawal messages are processed with respect to all the
Notes represented by a Book-Entry Note, the Bank will mark such Book-Entry Note “canceled,” make appropriate entries in its records and send such canceled Book-Entry Note to the Company. The CUSIP number assigned to such Book-Entry Note
shall, in accordance with CUSIP Service Bureau procedures, be canceled and not immediately reassigned. If withdrawal messages are processed with respect to a portion of the Notes represented by a Book-Entry Note, the Bank will exchange such
Book-Entry Note for two Book-Entry Notes, one for which withdrawal messages are processed and shall be canceled immediately after issuance, and the other of which shall represent the other Notes previously represented by the surrendered Book-Entry
Note and shall bear the CUSIP number of the surrendered Book-Entry Note. |
|
|
|
|
|
|
|
|
|
|
In the case of any Note sold through an Agent, as agent, if the purchase price for any Book-Entry Note is not timely paid to the Participants with respect to such Note by the beneficial investor or other purchaser
thereof (or a person, including an indirect participant in DTC, acting on behalf of such investor or other purchaser), such Participants and, in turn, such Agent may enter SDFS deliver orders through DTC’s Participant Terminal System reversing
Settlement Procedures G and H, respectively. Thereafter, the Bank will deliver the withdrawal message and take the related actions described in the preceding paragraph. If such failure shall have occurred for any reason other than default by
an |
III-26-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Agent to perform its obligations hereunder or under the Distribution Agreement, the Company will reimburse such Agent on an equitable basis for its loss of the use of funds during the period when the funds were credited to the
account of the Company. |
|
|
|
|
|
|
|
|
|
|
|
|
|
Notwithstanding the foregoing, upon any failure to settle with respect to a Book-Entry Note, DTC may take any actions in accordance with its SDFS operating procedures then in effect. In the event of a failure to settle with
respect to a Note that was to have been represented by a Book-Entry Note also representing other Notes, the Authenticating Agent will provide, in accordance with Settlement Procedures D and E, for the authentication and issuance of a Book-Entry Note
representing such remaining Notes and will make appropriate entries in its records. |
III-27-
PART III: PROCEDURES FOR NOTES ISSUED IN CERTIFICATED FORM
|
|
|
|
|
|
|
|
|
| Denominations: |
|
The Certificated Notes will be issued in minimum denominations of U.S. $1,000 and integral multiples of U.S. $1,000 in excess thereof, unless otherwise provided in the applicable Pricing Supplement. |
|
|
| Interest: |
|
Each Certificated Note will bear interest in accordance with its terms. Interest will begin to accrue on the Original Issue Date of a Certificated Note for the first Interest Payment Period and on the most recent
Interest Payment Date to which interest has been paid for all subsequent Interest Payment Periods. Each payment of interest shall include interest accrued to, but excluding, the date of such payment. Interest payments in respect of Fixed Rate Notes
will be made on the Interest Payment Date thereof, which will be the days during the term of the Notes specified in the applicable Pricing Supplement. However, the first payment of interest on any Certificated Note issued between a Regular Record
Date and an Interest Payment Date will be made on the Interest Payment Date following the next succeeding Regular Record Date. The Regular Record Date with respect to any Interest Payment Date for a Fixed Rate Note shall be the calendar day fifteen
days preceding each Interest Payment Date whether or not such day is a Business Day. Interest at Maturity will be payable to the person to whom the principal is payable. |
|
|
| Payment of Principal and Interest: |
|
Upon presentment and delivery of the Certificated Note, the Paying Agent will pay the principal amount of each Certificated Note at Maturity and the final installment of interest in immediately available funds. All
interest payments on a Certificated Note, other than interest due at Maturity, will be made by check drawn on the Paying Agent and mailed by the Paying Agent to the person entitled thereto as provided in the Certificated Note, or at the request of a
holder, by wire transfer of immediately available funds to a bank located in the United States. |
|
|
|
|
Certificated Notes presented to the Paying Agent at Maturity for payment will be canceled by the Authenticating Agent. All canceled Certificated Notes held by the Authenticating Agent shall be disposed of, and the
Authenticating Agent shall furnish to the Company a certificate with respect to such disposition upon written request therefor. |
III-28-
|
|
|
|
|
|
|
|
|
|
|
| Settlement Procedures: |
|
Settlement Procedures with regard to each Certificated Note purchased by an Agent, as principal, or through an Agent, as agent, shall be as follows: |
|
|
|
|
|
A. |
|
The applicable Agent will advise the Company by telephone, facsimile, email or other mutually acceptable method of the following Settlement information with regard to each Certificated Note: |
|
|
|
|
|
|
|
|
1. |
|
Exact name in which the Certificated Note is to be registered (the “Registered Owner”). |
|
|
|
|
|
|
|
|
2. |
|
Exact address or addresses of the Registered Owner for delivery, notices and payments of principal, premium, if any, and interest. |
|
|
|
|
|
|
|
|
3. |
|
Taxpayer identification number of the Registered Owner. |
|
|
|
|
|
|
|
|
4. |
|
Principal amount of the Certificated Note. |
|
|
|
|
|
|
|
|
5. |
|
Denomination of the Certificated Note. |
|
|
|
|
|
|
|
|
6. |
|
Fixed Rate Notes: |
|
|
|
|
|
|
|
|
|
|
|
(a) |
|
interest rate. |
|
|
|
|
|
|
|
|
|
|
Floating Rate Notes: |
|
|
|
|
|
|
|
|
|
|
|
(a) |
|
base rate or rates; |
|
|
|
|
|
|
|
|
|
|
|
(b) |
|
initial interest rate; |
|
|
|
|
|
|
|
|
|
|
|
(c) |
|
spread or spread multiplier, if any; |
|
|
|
|
|
|
|
|
|
|
|
(d) |
|
initial interest reset date; |
|
|
|
|
|
|
|
|
|
|
|
(e) |
|
interest reset period; |
|
|
|
|
|
|
|
|
|
|
|
(f) |
|
interest payment dates; |
|
|
|
|
|
|
|
|
|
|
|
(g) |
|
interest reset month, if any; |
|
|
|
|
|
|
|
|
|
|
|
(h) |
|
interest payment month, if any; |
III-29-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(i) |
|
interest payment period; |
|
|
|
|
|
|
|
|
|
|
|
(j) |
|
fixed interest rate, if any; |
|
|
|
|
|
|
|
|
|
|
|
(k) |
|
fixed rate commencement date, if any; |
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
index maturity; |
|
|
|
|
|
|
|
|
|
|
|
(m) |
|
maximum interest rate, if any; |
|
|
|
|
|
|
|
|
|
|
|
(n) |
|
minimum interest rate, if any; |
|
|
|
|
|
|
|
|
|
|
|
(o) |
|
LIBOR currency, if any; |
|
|
|
|
|
|
|
|
|
|
|
(p) |
|
the designated LIBOR page, if any; |
|
|
|
|
|
|
|
|
|
|
|
(q) |
|
designated CMT Maturity Index and designated CMT Reuters Page, if any; |
|
|
|
|
|
|
|
|
|
|
|
(r) |
|
any other applicable terms. |
|
|
|
|
|
|
|
|
7. |
|
Price to public of the Certificated Note (or whether the Note is being offered at varying prices relating to prevailing market prices at time of resale as determined by the applicable Agent). |
|
|
|
|
|
|
|
|
8. |
|
Settlement Date (Original Issue Date). |
|
|
|
|
|
|
|
|
9. |
|
Maturity Date. |
|
|
|
|
|
|
|
|
10. |
|
Whether the Notes are Senior Notes or Senior Subordinated Notes. |
|
|
|
|
|
|
|
|
11. |
|
Redemption provisions, if any: |
|
|
|
|
|
|
|
|
|
|
|
a) |
|
Initial Redemption Date |
|
|
|
|
|
|
|
|
|
|
|
b) |
|
Initial Redemption Percentage |
|
|
|
|
|
|
|
|
|
|
|
c) |
|
Annual Redemption Percentage Reduction |
|
|
|
|
|
|
|
|
12. |
|
Optional Repayment Date(s) and Optional Repayment Price, if any. |
III-30-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
13. |
|
Net proceeds to the Company. |
|
|
|
|
|
|
|
|
14. |
|
The Agent’s underwriting discount or commission, as the case may be. |
|
|
|
|
|
|
|
|
15. |
|
Whether such Note is being sold to the Agent as principal or to an investor or other purchaser through the agent acting as agent for the Company. |
|
|
|
|
|
|
|
|
16. |
|
Whether such Note is being issued with Original Issue Discount (“OID”) and the terms thereof. |
|
|
|
|
|
|
|
|
17. |
|
Such other information specified with respect to the Notes (whether by Addendum or otherwise). |
|
|
|
|
|
B. |
|
The Company shall provide to the applicable Trustee, the Authenticating Agent and the Calculation Agent (with respect to any Floating Rate Notes) by telephone, facsimile, email or other mutually acceptable method or
other method acceptable to the applicable Trustee and the Authenticating Agent the above Settlement information with respect to each Certificated Note received from the applicable Agent. The Company also shall cause the Authenticating Agent,
pursuant to a Company Order then in effect, to issue, authenticate and deliver Certificated Notes in accordance with the Settlement Procedures Timetable set forth below. The Company also shall provide to the applicable Trustee, the Authenticating
Agent, and the applicable Agent a copy of the applicable Pricing Supplement. |
|
|
|
|
|
C. |
|
The Authenticating Agent will authenticate the Certificated Notes and complete the preprinted 5-ply Note packet containing the following documents in forms approved by the Company, the applicable Agent, the applicable
Trustee, and the Authenticating Agent: |
|
|
|
|
|
|
|
|
1. |
|
Certificated Note with the applicable Agent’s confirmation, if traded on a principal basis, or the applicable Agent’s customer confirmation, if traded on an agency
basis. |
III-31-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2. |
|
Stub 1 – for the Authenticating Agent. |
|
|
|
|
|
|
|
|
3. |
|
Stub 2 – for the Agent. |
|
|
|
|
|
|
|
|
4. |
|
Stub 3 – for the Company. |
|
|
|
|
|
|
|
|
5. |
|
Stub 4 – for the applicable Trustee. |
|
|
|
|
|
D. |
|
With respect to each trade, the Authenticating Agent will deliver the Certificated Notes and Stub 2 thereof to the applicable Agent at the applicable address set forth in Section 12 of the Distribution
Agreement. |
|
|
|
|
|
|
|
The Authenticating Agent will keep Stub 1. The applicable Agent will acknowledge receipt of the Certificated Note through a broker’s receipt and will keep Stub 2. Delivery of the Certificated Note will be made only
against such acknowledgment of receipt. Upon determination that the Certificated Note has been authorized, delivered and completed as aforementioned, the applicable Agent will wire the net proceeds of the Certificated Note after deduction of its
applicable commission to the Company pursuant to standard wire instructions given by the Company. |
|
|
|
|
|
E. |
|
In the case of Notes sold through an Agent, as agent, such Agent will deliver the Certificated Note, as well as a copy of the Prospectus and any applicable Pricing Supplement or Supplements received from the
Authenticating Agent (unless such Prospectus and any applicable Pricing Supplements have previously been delivered or were not required to be delivered pursuant to the 1933 Act Regulations) to the purchaser against payment in immediately available
funds. |
|
|
|
|
|
F. |
|
The Authenticating Agent will send Stub 3 to the Company and Stub 4 to the applicable Trustee. |
III-32-
|
|
|
|
|
|
|
| Settlement Procedures Timetable: |
|
For offers to purchase Certificated Notes accepted by the Company, Settlement Procedures “A” through “F” set forth above shall be completed on or before the respective times set forth
below: |
|
|
|
| |
|
Settlement
Procedure |
|
Time |
|
|
A |
|
11:00 AM on the trade date or within one hour following the trade |
|
|
B |
|
12:00 noon on the trade date or within one hour following the trade |
|
|
C-D |
|
2:15 PM on Settlement Date |
|
|
E |
|
3:00 PM on Settlement Date |
|
|
F |
|
5:00 PM on Settlement Date |
|
|
| Failure to Settle: |
|
In the case of Notes sold through an Agent, as agent, if an investor or other purchaser of a Certificated Note from the Company shall either fail to accept delivery of or make payment for a Certificated Note on the
date fixed for settlement, such Agent will forthwith notify the Authenticating Agent and the Company by telephone, confirmed in writing, and return the Certificated Note to the Authenticating Agent. |
|
|
|
|
The Authenticating Agent, upon receipt of the Certificated Note from the applicable Agent, will immediately advise the Company and the Company will promptly arrange to credit the account of such Agent in an amount of
immediately available funds equal to the amount previously paid by such Agent in settlement for the Certificated Note. Such credits will be made on the Settlement Date if possible, and in any event not later than the Business Day following the
Settlement Date; provided that the Company has received such advice on the same day. If such failure shall have occurred for any reason other than failure by such Agent to perform its obligations hereunder or under the Distribution Agreement, the
Company will reimburse such Offering Agent on an equitable basis for its loss of the use of funds during the period when the funds were credited to the account of the company. Immediately upon receipt of the Certificated Note in respect of which the
failure occurred, the Authenticating Agent will cancel and dispose of the Certificated Note, make appropriate entries in its records to reflect the fact that the Certificated Note was never issued, and accordingly notify in writing the Company and
the applicable Trustee. |
III-33-
Exhibit 4.9
THE BANK OF NEW YORK MELLON
CORPORATION
TO
DEUTSCHE BANK TRUST COMPANY AMERICAS
Trustee
SENIOR DEBT
INDENTURE
Dated as of February 9, 2016
THE BANK OF NEW YORK MELLON CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939
and Senior Debt Indenture, dated as of February 9, 2016
|
|
|
|
|
|
|
| Trust Indenture
Act Section |
|
Indenture Section |
|
| § 310 |
|
(a)(1) |
|
|
609 |
|
|
|
(a)(2) |
|
|
609 |
|
|
|
(a)(3) |
|
|
Not Applicable |
|
|
|
(a)(4) |
|
|
Not Applicable |
|
|
|
(b) |
|
|
608, 610 |
|
| § 311 |
|
(a) |
|
|
613 |
|
|
|
(b) |
|
|
613 |
|
| § 312 |
|
(a) |
|
|
701, 702 |
|
|
|
(b) |
|
|
702 |
|
|
|
(c) |
|
|
702 |
|
| § 313 |
|
(a) |
|
|
703 |
|
|
|
(b) |
|
|
703 |
|
|
|
(c) |
|
|
703 |
|
|
|
(d) |
|
|
703 |
|
| § 314 |
|
(a) |
|
|
704 |
|
|
|
(a)(4) |
|
|
101, 1004 |
|
|
|
(b) |
|
|
Not Applicable |
|
|
|
(c)(1) |
|
|
102 |
|
|
|
(c)(2) |
|
|
102 |
|
|
|
(c)(3) |
|
|
Not Applicable |
|
|
|
(d) |
|
|
Not Applicable |
|
|
|
(e) |
|
|
102 |
|
| § 315 |
|
(a) |
|
|
601 |
|
|
|
(b) |
|
|
602 |
|
|
|
(c) |
|
|
601 |
|
|
|
(d) |
|
|
601 |
|
|
|
(e) |
|
|
514 |
|
| § 316 |
|
(a) |
|
|
101 |
|
|
|
(a)(1)(A) |
|
|
502, 512 |
|
|
|
(a)(1)(B) |
|
|
513 |
|
|
|
(a)(2) |
|
|
Not Applicable |
|
|
|
(b) |
|
|
508 |
|
|
|
(c) |
|
|
104 |
|
| § 317 |
|
(a)(1) |
|
|
503 |
|
|
|
(a)(2) |
|
|
504 |
|
|
|
(b) |
|
|
1003 |
|
| § 318 |
|
(a) |
|
|
107 |
|
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.
TABLE OF CONTENTS
|
|
|
|
|
|
|
| |
|
|
|
Page |
|
| PARTIES |
|
|
1 |
|
| RECITALS OF THE COMPANY |
|
|
1 |
|
|
| ARTICLE ONE |
|
|
| DEFINITIONS AND OTHER PROVISIONS |
|
| OF GENERAL APPLICATION |
|
|
|
|
| Section 101. |
|
Definitions |
|
|
1 |
|
| Section 102. |
|
Compliance Certificates and Opinions |
|
|
8 |
|
| Section 103. |
|
Form of Documents Delivered to Trustee |
|
|
9 |
|
| Section 104. |
|
Acts of Holders; Record Dates |
|
|
9 |
|
| Section 105. |
|
Notices, Etc., to Trustee and Company |
|
|
11 |
|
| Section 106. |
|
Notice to Holders; Waiver |
|
|
12 |
|
| Section 107. |
|
Conflict with Trust Indenture Act |
|
|
12 |
|
| Section 108. |
|
Effect of Headings and Table of Contents |
|
|
12 |
|
| Section 109. |
|
Successors and Assigns |
|
|
12 |
|
| Section 110. |
|
Separability Clause |
|
|
13 |
|
| Section 111. |
|
Benefits of Indenture |
|
|
13 |
|
| Section 112. |
|
Governing Law |
|
|
13 |
|
| Section 113. |
|
Legal Holidays |
|
|
13 |
|
| Section 114. |
|
Waiver of Jury Trial |
|
|
13 |
|
| Section 115. |
|
Certain Anti-Money Laundering Matters |
|
|
13 |
|
| Section 116. |
|
Force Majeure |
|
|
14 |
|
| Section 117. |
|
Certain Tax Matters |
|
|
14 |
|
|
| ARTICLE TWO |
|
|
| SECURITY FORMS |
|
|
|
|
| Section 201. |
|
Forms Generally |
|
|
14 |
|
| Section 202. |
|
Form of Face of Security |
|
|
15 |
|
| Section 203. |
|
Form of Reverse of Security |
|
|
17 |
|
| Section 204. |
|
Form of Legend for Global Securities |
|
|
21 |
|
| Section 205. |
|
Form of Certificate of Authentication |
|
|
21 |
|
|
| ARTICLE THREE |
|
|
| THE SECURITIES |
|
|
|
|
| Section 301. |
|
Amount Unlimited; Issuable in Series |
|
|
21 |
|
| Section 302. |
|
Denominations |
|
|
25 |
|
TABLE OF CONTENTS
Continued
|
|
|
|
|
|
|
| |
|
|
|
Page |
|
| Section 303. |
|
Execution, Authentication, Delivery and Dating |
|
|
25 |
|
| Section 304. |
|
Temporary Securities |
|
|
26 |
|
| Section 305. |
|
Registration, Registration of Transfer and Exchange |
|
|
27 |
|
| Section 306. |
|
Mutilated, Destroyed, Lost and Stolen Securities |
|
|
30 |
|
| Section 307. |
|
Payment of Interest; Interest Rights Preserved |
|
|
31 |
|
| Section 308. |
|
Persons Deemed Owners |
|
|
32 |
|
| Section 309. |
|
Cancellation |
|
|
32 |
|
| Section 310. |
|
Computation of Interest |
|
|
33 |
|
| Section 311. |
|
CUSIP Numbers |
|
|
33 |
|
|
| ARTICLE FOUR |
|
|
| SATISFACTION AND DISCHARGE |
|
|
|
|
| Section 401. |
|
Satisfaction and Discharge of Indenture |
|
|
33 |
|
| Section 402. |
|
Application of Trust Money |
|
|
35 |
|
|
| ARTICLE FIVE |
|
|
| REMEDIES |
|
|
|
|
| Section 501. |
|
Events of Default |
|
|
35 |
|
| Section 502. |
|
Acceleration of Maturity; Rescission and Annulment |
|
|
36 |
|
| Section 503. |
|
Collection of Indebtedness and Suits for Enforcement by Trustee |
|
|
37 |
|
| Section 504. |
|
Trustee May File Proofs of Claim |
|
|
38 |
|
| Section 505. |
|
Trustee May Enforce Claims Without Possession of Securities |
|
|
39 |
|
| Section 506. |
|
Application of Money Collected |
|
|
39 |
|
| Section 507. |
|
Limitation on Suits |
|
|
40 |
|
| Section 508. |
|
Unconditional Right of Holders to Receive Principal, Premium and Interest and to Convert |
|
|
40 |
|
| Section 509. |
|
Restoration of Rights and Remedies |
|
|
40 |
|
| Section 510. |
|
Rights and Remedies Cumulative |
|
|
41 |
|
| Section 511. |
|
Delay or Omission Not Waiver |
|
|
41 |
|
| Section 512. |
|
Control by Holders |
|
|
41 |
|
| Section 513. |
|
Waiver of Past Defaults |
|
|
41 |
|
| Section 514. |
|
Undertaking for Costs |
|
|
42 |
|
| Section 515. |
|
Waiver of Usury, Stay or Extension Laws |
|
|
42 |
|
- ii -
TABLE OF CONTENTS
Continued
|
|
|
|
|
|
|
| |
|
|
|
Page |
|
|
| ARTICLE SIX |
|
|
| THE TRUSTEE |
|
| Section 601. |
|
Certain Duties and Responsibilities |
|
|
42 |
|
| Section 602. |
|
Notice of Defaults |
|
|
43 |
|
| Section 603. |
|
Certain Rights of Trustee |
|
|
44 |
|
| Section 604. |
|
Not Responsible for Recitals or Issuance of Securities |
|
|
45 |
|
| Section 605. |
|
May Hold Securities |
|
|
45 |
|
| Section 606. |
|
Money Held in Trust |
|
|
45 |
|
| Section 607. |
|
Compensation and Reimbursement |
|
|
46 |
|
| Section 608. |
|
Disqualification; Conflicting Interests |
|
|
47 |
|
| Section 609. |
|
Corporate Trustee Required; Eligibility |
|
|
47 |
|
| Section 610. |
|
Resignation and Removal; Appointment of Successor |
|
|
47 |
|
| Section 611. |
|
Acceptance of Appointment by Successor |
|
|
49 |
|
| Section 612. |
|
Merger, Conversion, Consolidation or Succession to Business |
|
|
50 |
|
| Section 613. |
|
Preferential Collection of Claims Against Company |
|
|
50 |
|
| Section 614. |
|
Appointment of Authenticating Agent |
|
|
50 |
|
|
| ARTICLE SEVEN |
|
|
| HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY |
|
|
|
|
| Section 701. |
|
Company to Furnish Trustee Names and Addresses of Holders |
|
|
52 |
|
| Section 702. |
|
Preservation of Information; Communications to Holders |
|
|
52 |
|
| Section 703. |
|
Reports by Trustee |
|
|
52 |
|
| Section 704. |
|
Reports by Company |
|
|
53 |
|
|
| ARTICLE EIGHT |
|
|
| CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE |
|
|
|
|
| Section 801. |
|
Company May Consolidate, Etc., Only on Certain Terms |
|
|
53 |
|
| Section 802. |
|
Successor Substituted |
|
|
54 |
|
|
| ARTICLE NINE |
|
|
| SUPPLEMENTAL INDENTURES |
|
|
|
|
| Section 901. |
|
Supplemental Indentures Without Consent of Holders |
|
|
54 |
|
| Section 902. |
|
Supplemental Indentures with Consent of Holders |
|
|
56 |
|
| Section 903. |
|
Execution of Supplemental Indentures |
|
|
57 |
|
- iii -
TABLE OF CONTENTS
Continued
|
|
|
|
|
|
|
| |
|
|
|
Page |
|
| Section 904. |
|
Effect of Supplemental Indentures |
|
|
57 |
|
| Section 905. |
|
Conformity with Trust Indenture Act |
|
|
57 |
|
| Section 906. |
|
Reference in Securities to Supplemental Indentures |
|
|
57 |
|
|
| ARTICLE TEN |
|
|
| COVENANTS |
|
|
|
|
| Section 1001. |
|
Payment of Principal, Premium and Interest |
|
|
58 |
|
| Section 1002. |
|
Maintenance of Office or Agency |
|
|
58 |
|
| Section 1003. |
|
Money for Securities Payments to Be Held in Trust |
|
|
59 |
|
| Section 1004. |
|
Statement by Officers as to Default |
|
|
60 |
|
| Section 1005. |
|
Limitation on Disposition of Stock of Bank |
|
|
61 |
|
| Section 1006. |
|
Waiver of Certain Covenants |
|
|
61 |
|
|
| ARTICLE ELEVEN |
|
|
| REDEMPTION OF SECURITIES |
|
|
|
|
| Section 1101. |
|
Applicability of Article |
|
|
62 |
|
| Section 1102. |
|
Election to Redeem; Notice to Trustee |
|
|
62 |
|
| Section 1103. |
|
Selection by Security Registrar of Securities to Be Redeemed |
|
|
62 |
|
| Section 1104. |
|
Notice of Redemption |
|
|
63 |
|
| Section 1105. |
|
Deposit of Redemption Price |
|
|
64 |
|
| Section 1106. |
|
Securities Payable on Redemption Date |
|
|
64 |
|
| Section 1107. |
|
Securities Redeemed in Part |
|
|
65 |
|
|
| ARTICLE TWELVE |
|
|
| SINKING FUNDS |
|
|
|
|
| Section 1201. |
|
Applicability of Article |
|
|
65 |
|
| Section 1202. |
|
Satisfaction of Sinking Fund Payments with Securities |
|
|
65 |
|
| Section 1203. |
|
Redemption of Securities for Sinking Fund |
|
|
66 |
|
|
| ARTICLE THIRTEEN |
|
|
| DEFEASANCE AND COVENANT DEFEASANCE |
|
|
|
|
| Section 1301. |
|
Company’s Option to Effect Defeasance or Covenant Defeasance |
|
|
66 |
|
| Section 1302. |
|
Defeasance and Discharge |
|
|
66 |
|
| Section 1303. |
|
Covenant Defeasance |
|
|
67 |
|
- iv -
TABLE OF CONTENTS
Continued
|
|
|
|
|
|
|
| |
|
|
|
Page |
|
| Section 1304. |
|
Conditions to Defeasance or Covenant Defeasance |
|
|
67 |
|
| Section 1305. |
|
Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions |
|
|
69 |
|
|
|
| TESTIMONIUM |
|
|
71 |
|
| SIGNATURES AND SEALS |
|
|
71 |
|
| ACKNOWLEDGMENTS |
|
|
72 |
|
- v -
SENIOR DEBT INDENTURE, dated as of February 9, 2016, between THE BANK OF NEW YORK MELLON
CORPORATION, a corporation duly organized and existing under the laws of the State of Delaware (herein called the “Company”), having its principal office at 225 Liberty Street, New York, New York 10286, and DEUTSCHE BANK TRUST
COMPANY AMERICAS, a banking corporation duly organized and existing under the laws of the State of New York, as Trustee (herein called the “Trustee”).
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 (herein called the “Securities”), to be
issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the Company
in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101.
Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article One have the meanings assigned to them in this Article One 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, 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 at the date of such computation; provided that when two or more principles are so generally accepted, it shall mean the set of
principles consistent with those in use by the Company;
(4) unless the context otherwise requires, any reference to an
“Article” or a “Section” refers to an Article or a Section, as the case may be, of this Indenture;
(5)
the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision; and
(6) when used with respect to any Security, the words “convert”, “converted” and “conversion” are
intended to refer to the right of the Holder or the Company to convert or exchange such Security into or for securities or other property in accordance with such terms, if any, as may hereafter be specified for such Security as contemplated by
Section 301, and these words are not intended to refer to any right of the Holder or the Company to exchange such Security for other Securities of the same series and like tenor pursuant to Sections 304, 305,
306, 906 or 1107 or another similar provision of this Indenture, unless the context otherwise requires; and references herein to the terms of any Security that may be converted mean such terms as may be specified for such
Security as contemplated in Section 301.
“Act”, when used with respect to any Holder, has the meaning
specified in Section 104(a).
“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.
“Applicable Law” has the meaning specified in Section 115.
“Applicable Procedures” of a Depositary means, with respect to any matter at any time, the policies and procedures of such
Depositary, if any, that are applicable to such matter at such time.
“Authenticating Agent” means any Person authorized
by the Trustee pursuant to Section 614 to authenticate Securities.
“Bank” means The Bank of New York Mellon
and its successors (whether by consolidation, merger, conversion, transfer of substantially all their assets and business or otherwise) so long as The Bank of New York Mellon or any successor is a Subsidiary.
“Board of Directors” means either the board of directors of the Company or any duly authorized committee of that board.
2
“Board Resolution” means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Business Day”, when used with respect to any Place of Payment, means each day other than a Saturday, Sunday, or any other
day on which banking institutions in that Place of Payment are authorized or obligated by law or executive order to close; provided that, when used with respect to any Security, “Business Day” may have such other meaning, if any, as
may be specified for such Security as contemplated by Section 301.
“Commission” means the Securities and
Exchange Commission, from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties at such time.
“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 of Directors, its Chief Executive Officer, its President, its Controller, a Vice Chairman, or a Vice President, and by its General Counsel, its Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee, Authenticating Agent, Paying Agent or Security Registrar, as applicable.
“Corporate Trust Office” means the
office of the Trustee in the City, County and State of New York, at which at any particular time its corporate trust business shall be administered, such office being currently located at:
Deutsche Bank Trust Company Americas
Trust and Agency Services
60
Wall Street, 16th Floor
Mail Stop: NYC60-1630
New York, New York 10005
USA
Attn: Corporates Team, Bank of New York Mellon
Facsimile: (732) 578-4635
With a copy of any correspondence sent to:
Deutsche Bank Trust Company Americas
c/o Deutsche Bank National Trust Company
Trust and Agency Services
100
Plaza One - 6th Floor
MSJCY03-0699
Jersey City, NJ 07311-3901
USA
Attn: Corporates Team, Bank of New York Mellon
Facsimile: (732) 578-4635
3
“corporation” means a corporation, association, company (including a limited
liability company), joint-stock company or business trust.
“Covenant Defeasance” has the meaning specified in
Section 1303.
“Defaulted Interest” has the meaning specified in Section 307.
“Defeasance” has the meaning specified in Section 1302.
“Depositary” means, with respect to Securities of any series issuable in whole or in part in the form of one or more Global
Securities, a clearing agency that is to act as Depositary for such Securities as contemplated by Section 301.
“Event
of Default” has the meaning specified in Section 501.
“Exchange Act” means the Securities Exchange
Act of 1934 and any statute successor thereto, in each case as amended from time to time.
“Expiration Date” has the
meaning specified in Section 104(g).
“Global Security” means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 204 (or such legend as may be specified as contemplated by Section 301 for such Securities).
“Holder” means a Person in whose name a Security is registered in the Security Register.
“Indenture” means this instrument as originally executed and as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part
of and govern this instrument and any such supplemental indenture, respectively. The term “Indenture” shall also include the terms of particular series of Securities established as contemplated by Section 301.
“interest”, when used with respect to an Original Issue Discount Security which by its terms bears interest only after
Maturity, means interest payable after Maturity.
“Interest Payment Date”, when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
“Intermediate Subsidiary” has the meaning specified
in Section 1005.
“Investment Company Act” means the Investment Company Act of 1940 and any statute successor
thereto, in each case as amended from time to time.
4
“Maturity”, when used with respect to any Security, means the date on which the
principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“Notice of Default” means a written notice of the kind specified in Section 501(4).
“Officers’ Certificate” means a certificate signed by the Chairman of the Board of Directors, its Chief Executive
Officer, its President, its Controller, a Vice Chairman, or a Vice President, and by its General Counsel, its Treasurer, its Secretary or an Assistant Secretary of the Company, and delivered to the Trustee. One of the officers signing an
Officers’ Certificate given pursuant to Section 1004 shall be the principal executive, financial or accounting officer of the Company.
“Opinion of Counsel” means a written opinion of counsel, who may be counsel for or an employee of the Company or an Affiliate
of the Company, and who shall be reasonably acceptable to the Trustee.
“Original Issue Discount Security” means any
Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502.
“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 cancelled by the Security
Registrar or delivered to the Security Registrar for cancellation; and
(ii) Securities for whose payment or redemption
money in the necessary amount has been theretofore deposited with any Paying Agent (including the Trustee, if appointed as Paying Agent, or any other Person, other than the Company, appointed as Paying Agent) 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 that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(iii) Securities as to which Defeasance has been effected
pursuant to Section 1302;
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Security Registrar proof satisfactory to it
that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company; and
5
(v) Securities as to which any property deliverable upon conversion thereof has
been delivered (or such delivery has been made available), or as to which any other express conditions, the satisfaction of which will result in such Securities’ ceasing to be deemed outstanding, have been satisfied, in each case as may be
provided for such Securities as contemplated in Section 301;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given, made or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date, (A) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall be the amount of the principal thereof which would be due and payable as of such date upon acceleration of the Maturity thereof to such date pursuant to Section 502,
(B) if, as of such date, the principal amount payable at the Stated Maturity of a Security is not determinable, the principal amount of such Security which shall be deemed to be Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a Security denominated in one or more foreign currencies, composite currencies or currency units which shall be deemed to be Outstanding shall be the U.S. dollar equivalent,
determined as of such date in the manner provided as contemplated by Section 301, of the principal amount of such Security (or, in the case of a Security described in Clause (A) or (B) above, of the amount determined as
provided in such Clause), and (D) Securities owned by the 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, waiver or other action, only Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the
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 (and premium, if any, on) or interest, if any, on any Securities on behalf of the Company pursuant to Section 1003.
“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
and subject to Section 1002, means the place or places where the principal of (and premium, if any, on) and interest (if any) on the Securities of that series are payable as specified as contemplated by Section 301.
“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same debt
as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be
deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
6
“Record Date” means a Regular Record Date or a Special Record Date, as the case
may be.
“Redemption Date”, when used with respect to any Security to be redeemed, means the date fixed for such
redemption by or pursuant to this Indenture.
“Redemption Price”, when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
“Regular Record Date” for the interest payable
on any Interest Payment Date on the Securities of any series means the date specified for that purpose as contemplated by Section 301.
“Responsible Officer” when used with respect to the Trustee, means any vice president, any assistant secretary, any assistant
treasurer, any trust officer, any assistant trust officer or any other officer of the Trustee, in each case, within the corporate trust department of the Trustee who customarily performs functions similar to those performed by the Persons who at the
time shall be such officers, respectively, and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject and who
shall have direct responsibility for the administration of this Indenture.
“Securities” has the meaning stated in the
first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.
“Securities Act” means the Securities Act of 1933 and any statute successor thereto, in each case as amended from time to
time.
“Security Register” and “Security Registrar” have the respective meanings specified in
Section 305.
“Special Record Date” for the payment of any Defaulted Interest means a date fixed by the
Company pursuant to Section 307.
“Stated Maturity”, when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“Subsidiary” means a corporation more than 50% of the outstanding Voting Stock of which is owned, directly or indirectly, by
the Company or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries.
“Trust Indenture
Act” means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date,
“Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
7
“Trustee” means the Person named as the “Trustee” in the first
paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder, and if at
any time there is more than one such Person, “Trustee” as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.
“U.S. Government Obligation” has the meaning specified in Section 1304(1).
“Vice President”, when used with respect to the Company or the Trustee, means any vice president, whether or not designated
by a number or a word or words added before or after the title “vice president”.
“Voting Stock” means stock of
the class or classes having a general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of a corporation (irrespective of whether or not at the time stock of any other class or
classes shall have or might have voting power by reason of the happening of any contingency).
Section 102. Compliance Certificates and
Opinions.
Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the
Company shall furnish to the Trustee such certificates and opinions as may be required under the Trust Indenture Act; it being understood that, in accordance with Section 303, no such certificates or opinions shall
be required in connection with the issuance of Securities that are part of any series as to which such a certificate or an opinion has been furnished. Each such certificate or opinion shall be given in the form of an Officers’ Certificate, if
to be given by an officer 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 certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than the
certificates provided pursuant to Section 1004) shall include,
(i) a statement that each individual signing
such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(ii) 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;
(iii) a statement that, in the opinion of each such individual, he or she has made such examination or investigation as is
necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
8
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any
certificate or opinion of an officer of the 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 or her 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, or in the exercise of
reasonable care should know, 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 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given,
made or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the 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 601) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section 104.
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness 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 or her the execution thereof. Where such
execution is by a signer acting in a capacity other than his or her individual capacity, such certificate or affidavit shall also constitute sufficient proof of his or her 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.
9
(c) The ownership of Securities shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such Security.
(e) The Company may set any day as a record date for
the purpose of determining the Holders of Outstanding Securities of any series entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given,
made or taken by Holders of Securities of such series, provided that the Company may not set a record date for, and the provisions of this Section 104(e) shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in Section 104(f). If any record date is set pursuant to this Section 104(e), the Holders of Outstanding Securities of the relevant series on such record date, and no other
Holders, shall be entitled to take the relevant action, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by
Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this Section 104(e) shall be construed to prevent the Company from setting a new record date for any action for which a
record date has previously been set pursuant to this Section 104(e) (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this
Section 104(e) shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is
set pursuant to this Section 104(e), the Company, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 106. Nothing in this paragraph shall prevent a Holder, or a proxy of a Holder, from giving, after the Expiration Date, a new notice identical to a notice which has
expired, in which event a new record date shall be established.
(f) The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of Default, (ii) any declaration of acceleration referred to in Section 502, (iii) any request to
institute proceedings referred to in Section 507(2) or (iv) any direction referred to in Section 512, in each case with respect to Securities of such series. If any record date is set pursuant to this
Section 104(f), the Holders of Outstanding Securities of such series on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after
such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date.
Nothing in this Section 104(f) shall be construed to
10
prevent the Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this Section 104(f) (whereupon the record date previously
set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this Section 104(f) shall be construed to render ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this Section 104(f), the Trustee, at the Company’s expense, shall cause notice of such record date,
the proposed action by Holders and the applicable Expiration Date to be given to the Company in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 106. Nothing in this paragraph shall
prevent a Holder, or a proxy of a Holder, from giving, after the Expiration Date, a new notice identical to a notice which has expired, in which event a new record date shall be established.
(g) With respect to any record date set pursuant to this Section 104, the party hereto which sets such record dates may designate
any day as the “Expiration Date” and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be effective unless notice of the proposed new Expiration Date is given to
the other party hereto in writing, and to each Holder of Securities of the relevant series in the manner set forth in Section 106, on or prior to the existing Expiration Date. If an Expiration Date is not designated with respect to any
record date set pursuant to this Section 104, the party hereto which set such record date shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right
to change the Expiration Date as provided in this Section 104(g). Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day after the applicable record date.
(h) Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Security may do so
with regard to all or any part of the principal amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such principal amount.
Section 105. Notices, Etc., to Trustee and 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,
(i) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in writing (which may be by facsimile or other electronic means of transmission) to or with the Trustee at its Corporate Trust Office, Attention: Corporate Trust and Agency
Group, or
(ii) 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 the address of its principal office specified in the first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
11
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and given by first-class mail (postage prepaid), by overnight courier or by facsimile or other electronic means of transmission to each Holder affected by such event, at his or her 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, by overnight courier or by facsimile or other
electronic means of transmission, neither the failure to so give such notice, nor any defect in any notice so given, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides
for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
In case
it shall be impracticable to give such notice by mail, by overnight courier or by facsimile or other electronic means of transmission then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification
for every purpose hereunder.
Notwithstanding anything in this Indenture to the contrary, where this Indenture provides for notice of any
event to a Holder of a Global Security, such notice shall be sufficiently given if given to the Depositary for such Security (or its designee), pursuant to its Applicable Procedures, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act which is required under the Trust Indenture
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 which may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case may be.
Section 108. Effect of Headings and Table of
Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the
construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
12
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, and to the extent set forth in Section 603(j) each Paying Agent, Authenticating Agent and Security Registrar appointed hereunder, any benefit or any legal or equitable right, remedy or claim under this
Indenture.
Section 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York.
Section 113. Legal Holidays.
In any
case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security, or any date on which a Holder has the right to convert his or her Security, shall not be a Business Day at any Place of Payment, then (notwithstanding any
other provision of this Indenture or of the Securities (other than a provision of any Security which specifically states that such provision shall apply in lieu of this Section 113)) payment of interest or principal (and premium, if
any), or conversion of such Security, need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity, or on such date for conversion, as the case may be; provided that, except as may otherwise be provided pursuant to Section 301 with respect to any Securities of a particular series, 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 114.
Waiver of Jury Trial.
EACH OF THE COMPANY, THE HOLDERS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 115. Certain Anti-Money Laundering Matters.
In order to comply with laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions relating
to the funding of terrorist activities and money laundering (“Applicable Law”), the Trustee, any Authenticating Agent, any Paying Agent and the Security Registrar may be required to obtain, verify, record and update certain
information relating to individuals and entities which maintain a business relationship with the Trustee, such Authenticating Agent, such Paying Agent or the Security Registrar; accordingly,
13
the Company agrees to provide to the Trustee, any Authenticating Agent, any Paying Agent and the Security Registrar upon the reasonable request of the Trustee, such Authenticating Agent, such
Paying Agent or the Security Registrar from time to time such identifying information and documentation as may be available to the Company in order to enable the Trustee, such Authenticating Agent, such Paying Agent or the Security Registrar, as
applicable, to comply with Applicable Law.
Section 116. Force Majeure.
In no event shall the Trustee, any Authenticating Agent, any Paying Agent or the Security Registrar 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; and the Trustee, any Authenticating Agent, any Paying Agent and the
Security Registrar shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as possible.
Section 117. Certain Tax Matters.
In order to facilitate compliance with applicable tax laws (inclusive of rules, regulations and interpretations promulgated by competent
authorities) related to this Indenture in effect from time to time, the Company agrees to provide to the Trustee, any Authenticating Agent, any Paying Agent and the Security Registrar upon the reasonable request of the Trustee, such Authenticating
Agent, such Paying Agent or the Security Registrar from time to time such information about the Company, the Holders or the transactions contemplated by this Indenture as may be available to the Company.
ARTICLE TWO
Security
Forms
Section 201. Forms Generally.
The Securities of each series shall be in substantially the form set forth in this Article Two, or in such other form as shall be
established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or Depositary therefor or as may, consistently herewith, be determined
by the officers executing such Securities, as evidenced by their execution 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 the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 303 for the authentication and delivery of such Securities. If
all of the
14
Securities of any series established by action taken pursuant to a Board Resolution are not to be issued at one time, it shall not be necessary to deliver a record of such action at the time of
issuance of each Security of such series, but an appropriate record of such action shall be delivered at or before the time of issuance of the first Security of such series.
The definitive Securities shall be printed, or may be produced in any other manner, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
Section 202. Form of Face of Security.
THIS NOTE IS NOT A SAVINGS ACCOUNT, DEPOSIT OR OTHER OBLIGATION OF ANY BANK OR NONBANK SUBSIDIARY OF THE COMPANY AND IS NOT INSURED BY THE
FEDERAL DEPOSIT INSURANCE CORPORATION, THE DEPOSIT INSURANCE FUND OR ANY OTHER GOVERNMENTAL AGENCY.
[Insert any legend required by the
Internal Revenue Code and the regulations thereunder]
THE BANK OF NEW YORK MELLON CORPORATION
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
| No. . . . . . . . . . . |
$ . . . . . . . . |
THE BANK OF NEW YORK MELLON CORPORATION, a corporation duly organized and existing under the laws of the State of Delaware (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 Dollars on [If the Security is to bear interest prior to Maturity,
insert — , and to pay interest thereon from or from the most recent Interest Payment Date to which interest has been paid or duly provided for, 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 (to the extent that the payment of
such interest shall be legally enforceable) at the rate of % per annum on any overdue principal and premium and on any overdue installment of interest]. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date will, as provided in 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 will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Company, notice whereof shall be given to Holders of Securities of this
series and the Trustee not less than 10 days prior to such Special
15
Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon
such notice as may be required by such exchange, all as more fully provided in said Indenture].
[If the Security is not to bear
interest prior to Maturity, insert — The principal of this Security shall not bear interest except in the case of a default in payment of principal upon acceleration, upon redemption or at Stated Maturity and in such case the overdue
principal of this Security shall bear interest at the rate of % per annum (to the extent that the payment of such interest shall be legally enforceable), which shall accrue from
the date of such default in payment to the date payment of such principal has been made or duly provided for. Interest on any overdue principal shall be payable on demand. Any such interest on any overdue principal that is not so paid on demand
shall bear interest at the rate of % per annum (to the extent that the payment of such interest shall be legally enforceable), which shall accrue from the date of such 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.]
Payment of the principal of (and premium, if any, on) and [if applicable, insert — any 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][if applicable insert description of currency, currencies, composite currency, composite currencies or currency units in which the principal of or any premium or interest on any Securities of the
series shall be payable]; provided, however, that at the option of the Company payment of interest may be made (i) by check mailed to the address of the Person entitled thereto as such address shall appear in the Security
Register or (ii) by wire transfer in immediately available funds at such place and to such account as may be designated by the Person entitled thereto as specified in the Security Register in writing not less than ten days before the date of
the interest payment; and provided, further, that if this Security is a Global Security payment may be made pursuant to the Applicable Procedures of the Depositary as permitted in said Indenture.
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 an
Authenticating Agent, 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 under its corporate seal.
Dated:
|
|
|
| THE BANK OF NEW YORK MELLON CORPORATION |
|
|
| By |
|
|
|
|
Name: |
|
|
Title: |
Attest:
Name:
Title:
16
Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the Company (herein called the “Securities”), issued and to
be issued in one or more series under an Indenture, dated as of February 9, 2016 (herein called the “Indenture”, which term shall have the meaning assigned to it in such instrument), between the Company and Deutsche Bank Trust
Company Americas, as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of
rights, 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. This Security is one of the series designated on the
face hereof [if applicable, insert —, limited in aggregate principal amount to $ ].
[If applicable, insert — The Securities of this series are subject to redemption upon not less than 10 days’ nor more than 60
days’ notice, and in the manner provided in the Indenture, [if applicable, insert — (1) at any time on in any year commencing with the year
and ending with the year through operation of the sinking fund for this series at a Redemption Price
equal to 100% of the principal amount, and (2)] at any time [if applicable, insert — on or after ,
20 ], as a whole or in part, at the election of the Company, at the following Redemption Prices (expressed as percentages of the principal amount): If redeemed [on or before
, %, and if redeemed] during the 12-month period beginning
of the years indicated,
|
|
|
|
|
|
|
| Year |
|
Redemption Price |
|
Year |
|
Redemption Price |
and thereafter at a Redemption Price
equal to % of the principal amount, together in the case of any such redemption [if applicable, insert — (whether through operation of the sinking fund or
otherwise)] with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at
the close of business on the relevant Regular Record Dates referred to on the face hereof, all as provided in the Indenture.]
17
[If applicable, insert — The Securities of this series are subject to redemption upon
not less than 10 days’ nor more than 60 days’ notice in the manner provided in the Indenture, (1) on in any year commencing with the year
and ending with the year through operation of the sinking fund for this series at the Redemption Prices
for redemption through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below, and (2) at any time [if applicable, insert — on or after
], as a whole or in part, at the election of the 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,
|
|
|
|
|
| Year |
|
Redemption Price For
Redemption Through Operation
of the Sinking Fund |
|
Redemption Price For
Redemption Otherwise Than
Through Operation of the
Sinking Fund |
and thereafter at a Redemption Price equal to % of the principal amount, together in
the case of any such redemption (whether through operation of the sinking fund or otherwise) with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the
Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Regular Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert — Notwithstanding the foregoing, the Company may not, prior to
, redeem any Securities of this series as contemplated by [if applicable, insert — Clause (2) of] the preceding paragraph as a part of, or in anticipation of,
any refunding operation by the application, directly or indirectly, of moneys borrowed having an interest cost to the Company (calculated in accordance with generally accepted financial practice) of less than
% per annum.]
[If applicable, insert — The sinking
fund for this series provides for the redemption on in each year beginning with the year and ending with
the year of [if applicable, insert — not less than] $ [if applicable, insert —
(“mandatory sinking fund”) and not more than] $ aggregate principal amount of Securities of this series. [If applicable, insert — Securities of this
series acquired or redeemed by the Company otherwise than through [if applicable, insert — mandatory] sinking fund payments may be credited against subsequent [if applicable, insert — mandatory] sinking fund payments
otherwise required to be made [if applicable, insert — in the inverse order in which they become due].]
18
[If the Security is subject to redemption of any kind, insert — In the event of
redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert — The Indenture contains provisions for defeasance at any time of [(a)] [the entire indebtedness evidenced
by this Security] [and/or (b)] [certain restrictive covenants and Events of Default with respect to this Security,] [in each case] upon compliance by the Company with certain conditions set forth in the Indenture. At the election of the Company,
these provisions shall apply to this Security.]
[If the Security is not an Original Issue Discount Security, insert — If 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, insert — If 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 to
[insert formula for determining the amount]. Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest on any overdue
principal, premium and interest (in each case to the extent that the payment of such interest shall be legally enforceable), all of the Company’s obligations in respect of the payment of the principal of and premium, if any, on 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 the Holders of
not less than a majority in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of
each series at the time Outstanding to be affected under the Indenture, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
As
provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or this Security 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
19
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 (and premium, if any, hereon) or interest hereon on or after the respective due dates expressed herein.
If so provided pursuant to the terms of any specific Securities, the above-referenced provisions of the Indenture regarding the ability of
Holders to waive certain defaults, or to request the Trustee to institute proceedings (or to give the Trustee other directions) in respect thereof, may be applied differently with regard to such Securities.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and premium, if any, on) and interest (if any) on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the
Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of (and premium, if any, on) and interest (if any) on this Security are payable, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his or her attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and far the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in denominations of $1,000 and any integral multiple
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 be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
Under the Indenture, the Company, the Trustee and the holder of this Security waive, to the fullest extent permitted by law, any right to a
trial by jury in any proceeding relating to the Securities.
Except to the extent specified in this Security pursuant to Section
301 of the Indenture, in the event of any inconsistency between the Indenture and this Security, the provisions of the Indenture shall govern.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
20
Section 204. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the Securities evidenced thereby, every Global Security authenticated
and delivered hereunder shall bear a legend in substantially the following form:
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 EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR
IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
Section 205. Form of Certificate of Authentication.
The certificates of authentication shall be in substantially the following form:
This is one of the Securities of the series designated herein referred to in the within-mentioned Indenture.
|
|
|
| [AUTHENTICATING AGENT] as
Authenticating Agent |
|
|
| By: |
|
|
|
|
Authorized Officer |
ARTICLE THREE
The Securities
Section 301.
Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant to a Board
Resolution and, subject to Section 303, set forth, or determined in the manner provided, in an Officers’ Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series,
(i) the title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any
other series);
21
(ii) any limit upon the aggregate principal amount of the Securities of the
series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to
Sections 304, 305, 306, 906 or 1107 and except for any Securities which, pursuant to Section 303, are deemed never to have been authenticated and delivered hereunder);
(iii) the Person to whom any interest on a Security of the series shall be payable, if other than 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;
(iv) the date or dates on which the principal of any Securities of the series is payable;
(v) the rate or rates (or the formula pursuant to which such rate or rates shall be determined) at which any Securities of the
series shall bear interest, if any, including the rate of interest applicable on overdue payments of principal of (and premium, if any on) or interest on, if any, if different from the rate of interest at which the Securities otherwise bear
interest, the date or dates from which any such interest shall accrue, the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date for any such interest payable on any Interest Payment Date;
(vi) the place or places where the principal of (and premium, if any, on) and interest (if any) on any Securities of the series
shall be payable and the manner in which any payment may be made;
(vii) if applicable, the period or periods within which,
the price or prices at which and the terms and conditions upon which any Securities of the series may be redeemed, in whole or in part, at the option of the Company and, if other than by a Board Resolution, the manner in which any election by the
Company to redeem the Securities shall be evidenced;
(viii) the obligation, if any, of the Company to redeem or purchase
any Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which any Securities of the
series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(ix) if other than denominations
of $1,000 and any integral multiple thereof, the denominations in which any Securities of the series shall be issuable;
(x) if other than the currency of the United States of America, the currency, currencies, composite currency, composite
currencies or currency units in which the principal of (or premium, if any, on) or interest, if any, on Securities of the series shall be payable and the manner of determining the equivalent thereof in the currency of the United States of America
for any purpose, including for purposes of the definition of “Outstanding” in Section 101;
22
(xi) if the principal of (or premium, if any, on) or interest, if any, 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, composite currencies or currency units other than that or those in which such Securities are stated to be payable, the
currency, currencies, composite currency, composite currencies or currency units in which the principal of (or premium, if any, on) or interest, if any, on such Securities as to which such election is made shall be payable, the periods within which
and the terms and conditions upon which such election is to be made and the amount so payable (or the manner in which such amount shall be determined);
(xii) if the amount of payments of principal of (or premium, if any, on) or interest, if any, on any Securities of the series
may be determined with reference to an index, the manner in which such amounts shall be determined;
(xiii) if other than
the entire principal amount thereof, the portion of the principal amount of any Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502;
(xiv) if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any
one or more dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date for any purpose thereunder or hereunder, including the principal amount thereof which shall be due and
payable upon any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to be the principal amount shall be
determined);
(xv) any addition to, elimination of or other change in the Events of Default which applies to any Securities
of the series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 502;
(xvi) if applicable, that the Securities of the series, in whole or any specified part, shall be defeasible pursuant to
Section 1302 or Section 1303 or both such Sections, any provisions to permit a pledge of obligations other than U.S. Government Obligations (or the establishment of other arrangements) to satisfy the requirements of
Section 1304(1) for defeasance of such Securities; and, if other than by a Board Resolution, the manner in which any election by the Company to defease such Securities shall be evidenced;
(xvii) if applicable, that any Securities of the series shall be issuable in whole or in part in the form of one or more Global
Securities and, in such case, the respective Depositaries for such Global Securities, the form of any legend or legends which shall be borne by any such Global Security in addition to or in lieu of that set forth in Section 204 and any
addition to, elimination of or other change in the circumstances set forth in Clause (2) of the last paragraph of Section 305 in which any such Global Security may be exchanged in whole or in part for Securities registered, and any
transfer of such Global
23
Security in whole or in part may be registered, in the name or names of Persons other than the Depositary for such Global Security or a nominee thereof and any other provisions governing
exchanges or transfers of any such Global Security;
(xviii) any addition to, elimination of or other change in the
covenants set forth in Article Ten which applies to Securities of the series;
(xix) any provisions necessary to
permit or facilitate the issuance, payment or conversion of any Securities of the series that may be converted into securities or other property other than Securities of the same series and of like tenor, whether in addition to, or in lieu of, any
payment of principal or other amount and whether at the option of the Company or otherwise;
(xx) any change in the actions
permitted or required under this Indenture to be taken by or on behalf of the Holders of the Securities of the series, including any such change that permits or requires any or all such actions to be taken by or on behalf of the Holders of any
specific Securities of the series rather than or in addition to the Holders of all Securities of the series;
(xxi) if
applicable, the remarketing or extension features of the Securities of the series; and
(xxii) any other terms of the
series (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted by Section 901(7)).
All Securities of any one series shall be substantially identical except as to authorized denominations and except as may otherwise be
provided in or pursuant to the Board Resolution referred to above and (subject to Section 303) set forth, or determined in the manner provided, in the Officers’ Certificate referred to above or in any such indenture supplemental
hereto. All Securities of any one series need not be issued at one time and, unless otherwise provided, a series, or any issue of Securities of any one series, may be reopened for issuances of additional Securities of such series, or of such issue
of Securities, as the case may be.
Accordingly, the terms of any Security of a series may differ from the terms of other Securities of
the same series, if and to the extent provided pursuant to this Section 301. The matters referenced in any or all of Clauses (i) through (xxii) above may be established and set forth or determined as aforesaid with respect to
all or any specific Securities of a series (in each case to the extent permitted by the Trust Indenture Act).
If any of the terms of the
series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Officers’ Certificate setting forth the terms of the Securities of such series. If all of the Securities of any series established by action taken pursuant to a Board Resolution are not to be issued at one time, it shall not be
necessary to deliver a record of such action at the time of issuance of each Security of such series, but an appropriate record of such action shall be delivered at or before the time of issuance of the first Security of such series.
24
Section 302. Denominations.
The Securities of each series shall be issuable only in registered form without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such provisions with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman of the Board of Directors, its Chief Executive Officer, its
President, its Controller, its General Counsel, a Vice Chairman, a Vice President, or its Treasurer and attested by its Secretary or one of its Assistant Secretaries. The signature of any of these officers on the Securities may be manual or
facsimile.
Securities bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the 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 Authenticating Agent for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Authenticating Agent in accordance with the Company Order shall authenticate and
deliver such Securities. If all of the Securities of any series are not to be issued at one time and if the Board Resolution, Officers’ Certificate or supplemental indenture establishing such series shall so permit, such Company Order may set
forth procedures acceptable to the Authenticating Agent for the issuance of such Securities and determining the terms of particular Securities of such series, including, without limitation, but subject to such Board Resolution, Officers’
Certificate or supplemental indenture, as the case may be, the interest rate, maturity date, date of issuance and date from which interest shall accrue. If the form or terms of the Securities of the series have been established by or pursuant to one
or more Board Resolutions as permitted by Sections 201 and 301, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Authenticating Agent shall
be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or pursuant to a Board Resolution as permitted by Section 201, that such
form has been established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established
by or pursuant to Board Resolution as permitted by Section 301, that such terms have been established in conformity with the provisions of this Indenture; and
(c) that such Securities, when authenticated and delivered by the Authenticating Agent 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, and entitled to the benefits of this
25
Indenture, 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, if applicable, to provisions of law which may require that a judgment for money damages rendered by a court in the United States be expressed in United States dollars.
If such form or terms have been so established, the Authenticating Agent shall not be required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee’s or the Authenticating Agent’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Authenticating
Agent.
Notwithstanding the provisions of Section 301 and of the preceding paragraph, if all Securities of a series are not to
be originally issued at one time, it shall not be necessary to deliver the Officers’ Certificate otherwise required pursuant to Section 301 or the Company Order and Opinion of Counsel otherwise required pursuant to such preceding
paragraph at or prior to the authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for herein executed by the Authenticating Agent by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder 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 Authenticating Agent for cancellation as provided in Section 309 together with a written statement (which need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel) stating that such Security has never been issued and sold by the Company, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never
be entitled to the benefits of this Indenture.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Authenticating Agent shall
authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, reproduced or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued
and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the 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
26
for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment for that series, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series the Company shall execute, and the Authenticating Agent shall authenticate and deliver, in exchange therefor one or more definitive Securities of the
same series, of any authorized denominations and of like tenor and aggregate principal amount. Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive
Securities of such series and tenor.
Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the corporate trust office of the Security Registrar designated pursuant to this Section 305
a register (the register maintained in such office and in any other office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the “Security Register”) in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and of transfers of Securities. The Bank is hereby initially appointed “Security Registrar” for the purpose of registering
Securities and transfers of Securities as herein provided. For the avoidance of doubt, at any time after the date of this Indenture, the Company may appoint the Trustee or any other Person (other than the Company) as Security Registrar by providing
advance written notice of such appointment to the Trustee.
Any corporation into which a Security Registrar 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 Security Registrar shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of such
Security Registrar, shall continue to be Security Registrar, without the execution or filing of any paper or any further act on the part of the Company, the Trustee or such Security Registrar.
A Security Registrar may resign at any time by giving written notice thereof to the Trustee and to the Company. The Company may at any time
terminate the agency of a Security Registrar by giving written notice thereof to such Security Registrar and to the Trustee. Upon receiving such a notice of resignation or upon such a termination, the Company may appoint a successor Security
Registrar. Any successor Security Registrar upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as Security Registrar.
Upon surrender for registration of transfer of any Security of any series at the office or agency of the Company in a Place of Payment for
that series, the Company shall execute, and the Authenticating Agent shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series, of any authorized denominations and of like
tenor and aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged for other Securities of the
same series, of any authorized denominations and of like tenor and aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Authenticating Agent shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
27
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 Security
Registrar) 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 or her 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 Sections 304, 906 or 1107 not
involving any transfer.
The Security Registrar shall, upon written request thereof by the Trustee or the Company, provide the Trustee or
the Company, respectively, with a copy of the Security Register.
If the Securities of any series (or of any series and specified tenor)
are to be redeemed in part, the Company shall not be required (A) to issue, register the transfer of or exchange any Securities of that series (or of that series and specified tenor, as the case may be) during a period beginning at the opening
of business 15 days prior to the day of the transmission of a notice of redemption of any such Securities selected for redemption under Section 1103 and ending at the close of business on the day of such transmission (or during such
period as otherwise specified pursuant to Section 301 for such Securities), or (B) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part.
The provisions of Clauses (1), (2), (3), (4) and (5) below shall apply only to Global Securities:
(1) Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated for
such Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, and subject to such applicable provisions, if any, as may be
specified as contemplated by Section 301, no Global Security may be exchanged in whole or in part for Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than
the Depositary for such Global Security or a nominee thereof unless (A) such Depositary has notified the Company that it (i) is unwilling or unable to
28
continue as Depositary for such Global Security or (ii) has ceased to be a clearing agency registered under the Exchange Act, (B) there shall have occurred and be continuing an Event of
Default with respect to such Global Security, (C) the Company executes and delivers to the Trustee and Security Registrar a Company Order stating that such Global Security shall be so transferable and exchangeable or (D) there shall exist
such circumstances, if any, in addition to or in lieu of the foregoing as have been specified for this purpose as contemplated by Section 301. If the Company receives a notice of the kind specified in Clause (A) above or delivers
the Company Order referenced in Clause (C) above, it may, in its sole discretion, designate a successor Depositary for such Global Security within 60 days after receiving such notice or delivering such Company Order, as the case may be. If
the Company designates a successor Depositary as set forth above, such Global Security shall promptly be exchanged in whole for one or more other Global Securities registered in the name of the successor Depositary, whereupon such designated
successor shall be the Depositary for such successor Global Security or Global Securities and the provisions of Clauses (1), (2), (3) (4) and (5) of this Section 305 shall continue to apply thereto.
(3) Subject to Clause (2) above and to such applicable provisions, if any, as may be specified as contemplated by
Section 301, any exchange of a Global Security for other Securities may be made in whole or in part, and all Securities issued in exchange for a Global Security or any portion thereof shall be registered in such names as the Depositary
for such Global Security shall direct.
(4) Every Security authenticated and delivered upon registration of transfer of, or
in exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this Section 305, Section 304, 306, 906 or 1107 or otherwise, shall be authenticated and delivered in the form
of, and shall be, a Global Security, unless such Security is registered in the name of a Person other than the Depositary for such Global Security or a nominee thereof.
(5) Neither any members of, or participants in, a Depositary, nor any other Persons on whose behalf such members or
participants may act, shall have any rights under this Indenture with respect to any Global Security registered in the name of a Depositary or any nominee thereof, and the applicable Depositary or such nominee, as the case may be, may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner and Holder of such Global Security for all purposes whatsoever. None of the Company, the Trustee, any Paying Agent, any Security Registrar, any Authenticating
Agent or any other agent of the Company or any agent of the Trustee shall have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Security in the form of a
Global Security, or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests. The Company, the Trustee, any Paying Agent, any Security Registrar, any Authenticating Agent, and any other agent of the
Company and any agent of the Trustee shall be entitled to deal with a Depositary, and any nominee thereof, that is the Holder of a Global Security for all purposes of this Indenture relating to such Global Security (including the payment of
principal, premium, if any, and interest, if any, and the giving of instructions or directions by or to the owner
29
or holder of a beneficial ownership interest in such Global Security) as the sole Holder of such Global Security and shall have no obligations to the beneficial owners thereof. None of the
Company, the Trustee, any Paying Agent, any Security Registrar or any other agent of the Company or any agent of the Trustee shall have any responsibility or liability for any acts or omissions of a Depositary with respect to a Global Security, for
the records of any such Depositary, including records in respect of beneficial ownership interests in respect of any such Global Security, for any transactions between such Depositary and any members or participants in such Depositary or other
participant in such Depositary or between or among any such Depositary, any such member or participant in such Depositary or other participant and/or any holder or owner of a beneficial interest in such Global Security or for any transfers of
beneficial interests in any such Global Security.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Authenticating Agent 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 Security Registrar (i) evidence to their satisfaction of the destruction, loss or
theft of any Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Security Registrar that such Security has
been acquired by a bona fide purchaser, the Company shall execute and the Authenticating Agent shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its absolute discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section 306, 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 306 in lieu of any destroyed, lost or stolen Security shall
constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued hereunder.
The provisions of this Section 306
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.
30
Section 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with respect to any Securities of a series, interest on any Security
which is payable, and is punctually paid or made available for payment, 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 made
available for payment, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided in Clause (1) or (2) below:
(1)
The Company may elect to make payment of any Defaulted Interest payable on any Securities of a series to the Person or Persons in whose names such Securities (or their respective Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each of such Securities and the
date of the proposed payment, and at the same time the Company shall deposit with the Paying Agent (other than the Company) 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 Paying Agent (other than the Company) 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 cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given to each Holder of such Securities and the
Trustee in the manner set forth in Section 106, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so given, such Defaulted
Interest shall be paid to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following Clause
(2).
(2) The Company may make payment of any Defaulted Interest on any Securities of a series in any other lawful manner
not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant
to this Clause (2), such manner of payment shall be deemed practicable by the Paying Agent.
31
Except as may otherwise be provided in this Section 307 or as contemplated in
Section 301 (A) with respect to any Securities of a series, the Person to whom interest shall be payable on any Security that first becomes payable on a day that is not an Interest Payment Date shall be the Holder of such Security
on the day such interest is paid and (B) installments of interest whose Stated Maturity is on the Redemption Date will be payable to the Holders of such Securities to whom the principal shall be payable.
Subject to the foregoing provisions of this Section 307, 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.
In the case of any Security which is converted after any Regular Record Date and on or prior to the next succeeding Interest Payment Date
(other than any Security whose Maturity is prior to such Interest Payment Date), interest whose Stated Maturity is on such Interest Payment Date shall be payable on such Interest Payment Date notwithstanding such conversion, and such interest
(whether or not punctually paid or made available for payment) 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 such Regular Record Date. Except as otherwise
expressly provided in the immediately preceding sentence, in the case of any Security which is converted, interest whose Stated Maturity is after the date of conversion of such Security shall not be payable. Notwithstanding the foregoing, the terms
of any Security that may be converted may provide that the provisions of this paragraph do not apply, or apply with such additions, changes or omissions as may be provided thereby, to such Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of (and premium, if any, on), and (subject to Section 307) interest, if any, on such Security and
for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global Security, nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy or other authorization furnished by a Depositary or impair, as between a Depositary and holders of beneficial interests in any Global Security, the operation of customary
practices and adherence to the Applicable Procedures governing the exercise of the rights of the Depositary as Holder of such Global Security.
Section 309. Cancellation.
All
Securities surrendered for payment, redemption, registration of transfer or exchange or conversion or for credit against any sinking fund payment shall, if surrendered to any Person other than the Security Registrar, be delivered to the Security
Registrar and shall be
32
promptly cancelled by it. The Company may at any time deliver to the Security Registrar for cancellation any Securities previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Security Registrar (or to any other Person for delivery to the Security Registrar) for cancellation any Securities previously authenticated hereunder which the Company has not issued and
sold, and all Securities so delivered shall be promptly cancelled by the Security Registrar. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section 309, except as expressly
permitted by this Indenture. Upon the receipt of a Company Request stating that all cancelled Securities shall be destroyed, all cancelled Securities held by the Security Registrar shall be disposed of by the Security Registrar in accordance with
its procedures for the disposition of cancelled securities, and a certificate of disposition shall be delivered to the Company upon written request therefrom, unless, by a Company Order, the Company directs the return of such cancelled Securities to
it.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities of any series, interest on the Securities of each
series shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 311. CUSIP Numbers.
The Company in issuing the Securities may use CUSIP numbers (if then generally in use) and, if so, CUSIP numbers shall be used in notices of
redemption as a convenience to Holders, provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of redemption and that
reliance may be placed only on the other identification numbers printed on the Securities. Any such redemption shall not be affected by any defect in or omission of such numbers.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect (except as to any surviving rights of conversion, registration of
transfer or exchange of any Security expressly provided for herein or in the terms of such Security), and the Trustee, upon Company Request and at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge
of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 306 and (ii) Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 1003) have been delivered to the Security Registrar for cancellation; or
33
(B) all such Securities not theretofore delivered to the Security Registrar for
cancellation
(i) have become due and payable, or
(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 deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose money in an amount sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the
Security Registrar for cancellation, for principal (and premium, if any) and interest, if any, to the date of such deposit (in the case of Securities which have become due and payable) or to the 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; 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 have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 607,
the obligations of the Company to any Authenticating Agent under Section 614 and, if money or U.S. Government Obligations shall have been deposited with the Trustee (or another trustee satisfying the conditions of
Section 609) in accordance with Section 1302, the obligations of the Company under the fourth paragraph of Section 1305, and, if money shall have been deposited with the Trustee pursuant to Subclause (B) of
Clause (1) of this Section 401, the obligations of the Trustee under Section 402 and the fifth paragraph of Section 1003 shall survive such satisfaction and discharge.
Section 402. Application of Trust Money.
Subject to the provisions of the fifth paragraph of Section 1003, all money deposited with the Trustee pursuant to
Section 401 shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying
Agent) as
34
the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest, if any, for whose payment such money has been deposited with the Trustee, but such
money need not be segregated from other funds except as required by law. All money deposited with the Trustee pursuant to Section 401 (and held by it or any Paying Agent) for the payment of Securities subsequently converted into other
property shall be returned to the Company upon Company Request.
ARTICLE FIVE
Remedies
Section 501. Events of
Default.
Except as may otherwise be provided pursuant to Section 301 for all or any specific Securities of any series,
“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 deposit of any sinking fund payment, when and as due by the
terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty of the
Company in this Indenture or any Security of that series (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section 501 specifically dealt with or which has expressly been included in
this Indenture solely for the benefit of Securities other than Securities of that series; it being understood that to the extent a covenant or warranty is applicable solely to Securities other than Securities of such series, a
default in the performance, or breach, of any such covenant or warranty shall not result in an Event of Default with respect to Securities of such 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 the Holders of at least 25% in principal amount of the Outstanding Securities of that series a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or
(5) the entry by
a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or
(B) a decree or order appointing a custodian, receiver, liquidator, assignee, trustee,
35
sequestrator or other similar official of the Company or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree
or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days; or
(6)
the commencement by the Company of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or the consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of any such action; or
(7) any other Event of Default provided with respect to Securities of that series.
The Company shall deliver to the Trustee, as soon as possible and in any event within five days after any of the Chairman of the Board of
Directors, the Chief Executive Officer, a Vice Chairman, the President, the Chief Financial Officer, General Counsel or the Treasurer of the Company becomes aware of the occurrence of any Event of Default, a written notice setting forth the details
of such Event of Default and the action which the Company proposes to take with respect thereto signed in the name of the Company by the Chairman of the Board of Directors, the Chief Executive Officer, a Vice Chairman, the President, the Chief
Financial Officer, any Vice President, the Treasurer, a Deputy Treasurer, the General Counsel or any Assistant Treasurer of the Company, or a person authorized by such person or by a Board Resolution.
Section 502. Acceleration of Maturity; Rescission and Annulment.
Except as may otherwise be provided pursuant to Section 301 for all or any specific Securities of any series, if an Event of
Default (other than an Event of Default specified in Section 501(5) or 501(6)) with respect to the Securities of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of
not less than 25% in principal amount of the Outstanding Securities of that series may declare the principal amount of all the Securities of that series (or, in the case of any Security of that series which specifies an amount to be due and payable
thereon upon acceleration of the Maturity thereof, such amount as may be specified by the terms thereof) 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. Except as may otherwise be provided pursuant to Section 301 for all or any specific Securities of any series, if an Event of Default specified in
Section 501(5) or 501(6) with respect to the Securities of any series at the time Outstanding occurs, the principal amount of all the Securities of that series (or, in the case of any Security of that series which specifies an
amount to be due and payable thereon upon acceleration of the Maturity thereof, such amount as may be specified by the terms thereof) shall automatically, and without any declaration or other action on the part of the Trustee or any Holder, become
immediately due and payable. For the avoidance of doubt, upon payment of such amount, all obligations of the Company in respect of the payment of principal of (and premium, if any, on) and interest (if any) on the Securities of such series shall
terminate.
36
Except as may otherwise be provided pursuant to Section 301 for all or any specific
Securities of any series, 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 Five provided, the Holders of a majority in principal amount of the Outstanding Securities of that series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences, and any
Event of Default giving rise to such declaration shall not be deemed to have occurred, 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 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 reasonable compensation, 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 513 or otherwise remedied.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The 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,
(2) default is made in the payment of the principal of (and premium, if any, on) any
Security at the Maturity thereof, or
(3) default is made in the making or satisfaction of any sinking fund payment or
analogous obligation when the same becomes due pursuant to the terms of any Security;
37
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the
whole amount then due and payable on such Securities for principal, including any sinking fund payment or analogous obligation, (and any premium, if any) and interest, if any and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal (and premium, if any) and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If the 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 may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 504.
Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the
principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall
be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding. In particular,
the Trustee shall be authorized (i) to file and prove a claim for the whole amount of principal (and premium, if any) and interest, if any, owing and unpaid in respect of the Securities of all series and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such
judicial proceeding, and (ii) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby
38
authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’ or other similar committee.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of
any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article Five shall be applied in the following order, at the date or dates fixed by
the Trustee and, in case of the distribution of such money on account of principal (or premium, if any) or interest, if any, 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 607;
SECOND: To the payment of the amounts then due and unpaid for principal of (and premium, if any, on) and interest, if any, 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 premium, if any) and
interest, if any, respectively; and
THIRD: To the payment of the remainder, if any, to the Company or to any other Person
who may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct.
39
Section 507. 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 the Securities, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such
Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable 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
of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders.
Section 508. Unconditional Right of
Holders to Receive Principal, Premium and Interest and to Convert.
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 premium, if any, on) and (subject to Section 307) interest, if any, on such Security on the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and, if the terms of such Security so provide, to convert such Security in accordance with its terms, and to institute suit for the enforcement of any such
payment, and, if applicable, any such right to convert, and such rights shall not be impaired without the consent of such Holder.
Section 509.
Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the
Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
40
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law,
be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article Five or by law to the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any, on) or interest, if any, on any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such series affected.
41
Upon any such waiver, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
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 reasonable costs, including reasonable attorneys’ fees, against any such party litigant, in
the manner and to the extent provided in the Trust Indenture Act; provided that neither this Section 514 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 Company or if applicable, in any suit for the enforcement of the right to convert any Security in accordance with its terms.
Section 515. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that
it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
Section 601. Certain
Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad
faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to
the requirements of this Indenture.
42
(b) In case an Event of Default has occurred and is continuing, the Trustee shall exercise such
of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man or woman would exercise or use under the circumstances in the conduct of his or her own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own wilful misconduct, except that
(1) this Subsection 601(c) shall not
be construed to limit the effect of Subsection (a) of this Section 601;
(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 of a majority in principal amount of the Outstanding Securities of any series, determined as provided in Section 512, relating to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such series; and
(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 it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 601.
Section 602. Notice of Defaults.
Within 90 days after receipt by a Responsible Officer of the Trustee of written notice of the occurrence of any default hereunder with respect
to Securities of any series, the Trustee shall deliver the Holders of Securities of such series, as their names and addresses appear in the Security Register, notice of such default hereunder, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment of the principal of (or premium, if any, on) or interest on any Security of such series or in the payment of any sinking fund installment with respect to
Securities of such series, the Trustee shall be protected in withholding such notice if and so long as Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the interest of the Holders of Securities of
such series; and provided, further, that in the case of any default of the character specified in Section 501(4) with respect to Securities of such series, no such notice to Holders shall be given until at least 90 days
after the occurrence thereof. For the purpose of this Section 602, the term “default” means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of such series.
43
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a
Company Request or Company Order and any resolution of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers’ Certificate;
(d) the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any
duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
44
(h) the Trustee shall not be liable for any action taken, suffered or omitted to
be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(i) the Trustee shall not be deemed to have knowledge of any default or Event of Default unless a Responsible Officer of the
Trustee shall have (x) received written notice of such event, referencing the Securities and this Indenture, at the Corporate Trust Office of the Trustee or (y) obtained actual knowledge of such event;
(j) the rights, privileges, protections, immunities and benefits given to the Trustee, including its rights to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder and by each Paying Agent, Authenticating Agent and Security Registrar appointed hereunder;
(k) the Trustee may, from time to time, request that the Company deliver a certificate (upon which the Trustee may conclusively
rely) setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture together with a specimen signature of such authorized officers; provided, however, that
from time to time, the Company may, by delivering to the Trustee a revised certificate, change the information previously provided by it pursuant to this Section 603(k), but the Trustee shall be entitled to conclusively rely on the
then-current certificate until receipt of a superseding certificate;
(l) the right of the Trustee to perform any
discretionary act enumerated in this Indenture shall not be construed as a duty; and
(m) the Trustee shall not be
responsible or liable for punitive, special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or
damage and regardless of the form of actions.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements
of the Company, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or application by the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company.
45
Section 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith;
(3) to indemnify each of the Trustee and any successor
or predecessor Trustee hereunder and their agents for, and to hold it harmless against, any and all loss, liability, damage, claim, judgment or expense, including tax (other than tax imposed on the income of the Trustee), incurred without its own
negligence or willful misconduct, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder and the performance of its duties (including in any agent capacity in which it acts), as well as the costs and
expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder;
(4) to grant the Trustee a security interest in any funds or property of the Company held by the Trustee under this Indenture
to secure the Company’s performance of obligations under this Section 607 except for funds held in trust for payment of principal or interest on any Securities; and
(5) that the provisions of this Section 607 shall survive the satisfaction and discharge of this Indenture,
defeasance pursuant to Article Thirteen of this Indenture and any resignation or removal of any Trustee.
46
Section 608. 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 conflicting interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by the Trust Indenture Act, the Trustee shall not be deemed to
have a conflicting interest by virtue of being a trustee under this Indenture with respect to Securities of more than one series, a trustee under the Indenture, dated as of July 18, 1991, as supplemented, between the Company (as successor to
The Bank of New York Company, Inc.) and the Trustee (as successor to Bankers Trust Company) with respect to the securities issued thereunder, or a trustee under any other indenture or indentures under which other securities, or certificates of
interest or participation in other securities, of the Company are outstanding if the requirements set forth in the Trust Indenture Act are met.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with respect to the Securities of each series, which may be Trustee hereunder
for Securities of one or more other series. Each Trustee shall be a corporation that is eligible pursuant to the Trust Indenture Act to act as such, has a combined capital and surplus of at least $50,000,000 and has its Corporate Trust Office in the
United States. If any such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section 609 and to the extent
permitted by the Trust Indenture Act, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee with
respect to the Securities of any series shall cease to be eligible in accordance with the provisions of this Section 609, it shall resign immediately in the manner and with the effect hereinafter specified in this Article Six.
Section 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article Six shall become
effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 611.
(b) 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 611 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(c) 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.
(d) If at any time:
47
(1) the Trustee shall fail to comply with Section 608 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 609 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, (i) the Company by a Board Resolution may remove the Trustee with respect to all Securities, or (ii) subject to
Section 514, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor Trustee or Trustees.
(e) 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 611. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the 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 611, 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 the Holders and accepted appointment in the manner required by
Section 611, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of
a successor Trustee with respect to the Securities of such series.
(f) 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 106. Each
notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.
48
Section 611. Acceptance of Appointment by Successor.
(a) 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,
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, subject to such retiring Trustee’s security interest under Section 607.
(b) In case of the appointment
hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by
more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to
the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, subject to such retiring Trustee’s security interest under Section 607.
(c) 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 (a) and (b) of this Section 611, as the case may be.
49
(d) 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 Six.
Section 612. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this Article Six, without the execution or filing of any paper or any further act on the part of any of the parties hereto.
Section 613. Preferential Collection of Claims Against 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 614.
Appointment of Authenticating Agent.
The Trustee shall appoint an Authenticating Agent or Agents with respect to each series of
Securities which shall be authorized to, and shall, authenticate Securities of such series issued upon original issue and upon exchange, registration of transfer or partial redemption thereof or partial conversion thereof, or pursuant to
Section 306, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes; provided that there shall at all times be at least one Authenticating Agent with
respect to each series of Securities; provided, further, that if, at any time, no Person (other than the Trustee) has been appointed as Authenticating Agent with respect to any series of Securities, the Trustee shall appoint itself to
act, and shall act, as Authenticating Agent for such series. Wherever reference is made in this Indenture to the authentication and delivery of Securities or the certificate of authentication, such reference shall refer to authentication and
delivery by the Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District
of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section 614, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent (other than the Trustee) shall cease to be eligible in accordance with the provisions of
this Section 614, such Authenticating Agent shall resign immediately in the manner
50
and with the effect specified in this Section 614. If at any time the Trustee has been appointed as Authenticating Agent hereunder and shall cease to be eligible in accordance with
the provisions of this Section 614, the provisions with respect to the resignation and removal of the Trustee, and the appointment of a successor, in Section 610 and Section 611 shall apply.
Any corporation into which Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of such an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible under this Section 614, without the execution or filing of any paper or any further act on the part of the Trustee or such Authenticating Agent. In case any
Securities shall have been authenticated, but not delivered, by the Authenticating Agent then appointed, any successor by merger, conversion or consolidation to such Authenticating Agent may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Authenticating Agent had itself authenticated such Securities.
An Authenticating
Agent (other than the Trustee, if it has been appointed as 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 (other than the Trustee, if it has been appointed as an Authenticating Agent) by giving written notice thereof to such Authenticating Agent and to the Company; provided that if the Trustee is the sole appointed Authenticating Agent with
respect to any series of Securities, the Trustee may terminate its agency as Authenticating Agent with respect to such series of Securities only if a successor Authenticating Agent has been appointed and accepted such appointment. 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 614, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give notice of such appointment in the manner provided in Section 106 to all Holders of Securities of the series with respect to which such Authenticating Agent will
serve. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No
such successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section 614.
The Company
agrees to pay to each Authenticating Agent from time to time such compensation for its services under this Section 614 as the Company and each Authenticating Agent shall from time to time agree in writing.
The Trustee is hereby directed to appoint the Bank as, and the Bank is hereby initially appointed Authenticating Agent for the purpose of
authenticating the Securities as herein provided, and the Trustee shall incur no liability for such appointment or for any misconduct or negligence of such Authenticating Agent, including without limitation, its authentication of the Securities upon
original issuance or pursuant to Section 306. Without limiting the foregoing, in the event the Trustee does incur liability for any such misconduct or negligence of such Authenticating Agent or any successor (other than the Trustee)
appointed pursuant to this Section 614, the Company agrees to indemnify the Trustee for, and hold it harmless against, any such liability, including the costs and expenses of defending itself against any liability in connection with such
misconduct or negligence of such Authenticating Agent.
51
Following the appointment of an Authenticating Agent with respect to one or more series pursuant
to this Section 614, the Securities of such series shall have endorsed thereon a certificate of authentication in the form set forth in Section 205.
ARTICLE SEVEN
Holders’ Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than January 15 and July 15 in each year, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of Securities of each series as of the preceding January 1 and July 1, as the case may be and
(b) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished;
excluding
from any such list names and addresses received by the Security Registrar (if the Trustee is acting as Security Registrar).
Section 702.
Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent list furnished by or on behalf of the Company to the Trustee as provided in Section 701, and, if and only if the Trustee is acting as Security Registrar, the
names and addresses of Holders received by the Trustee in such capacity. The Trustee may destroy any list furnished to it as provided in Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act.
Every Holder of Securities, by
receiving and holding the same, agrees with the 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 names and addresses of
Holders made pursuant to the Trust Indenture Act.
Section 703. Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to
Section 313 of the Trust Indenture Act at the times and in the manner provided pursuant thereto.
52
Reports so required to be transmitted at stated intervals of not more than 12 months shall
be transmitted no later than the anniversary of the original issuance of such series of Securities.
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 when any Securities are listed on any
stock exchange.
Section 704. Reports by Company.
The Company shall file with the Trustee and the Commission, 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 any such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act need not be filed with the Trustee until the 15th day after the same are actually filed with the Commission.
Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such
shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Officers’ Certificates).
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. 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, and the Company shall not permit any Person to consolidate with or merge into the Company, unless:
(1) in case the Company shall consolidate with or merge into another Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, 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 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, in form satisfactory to the Trustee, the due and punctual payment of the principal of (and premium, if any, on) and interest, if any, on all the Securities and the performance or observance
of every covenant of this Indenture on the part of the Company to be performed or observed and, for each Security that by its terms provides for conversion, shall have provided for the right to convert such Security in accordance with its terms;
53
(2) immediately after giving effect to such transaction, no Event of Default, and
no event which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing; and
(3) 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, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Article Eight and that all conditions precedent herein
provided for relating to such transaction have been complied with.
Section 802. 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 801, 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.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.
Except as may otherwise be provided pursuant to Section 301 for all or any specific Securities of any series, without the consent
of any Holders, the Company, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following
purposes:
(1) to evidence the succession of another Person to the Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any Securities of any series (and if such covenants are to be for the benefit of less than all Securities of any series, stating that such covenants are expressly being included solely for the benefit of such Securities within
such series); or
(3) to convey, transfer, assign, mortgage or pledge any property to or with the Trustee, or to secure the
Securities of any series, or to provide for guarantees of the Securities of any series; or
(4) to surrender any right or
power herein conferred upon the Company with regard to all or any Securities of any series (and if any such surrender is to be made with regard to less than all Securities of any series, stating that such surrender is expressly being made solely
with regard to such Securities within such series); or
54
(5) to add any additional Events of Default for the benefit of the Holders of all
or any Securities of any series (and if such additional Events of Default are to be for the benefit of less than all Securities of any series, stating that such additional Events of Default are expressly being included solely for the benefit of such
Securities within such series); or
(6) to add to or change any of the provisions of this Indenture to such extent as shall
be necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate the issuance of Securities in uncertificated form; or
(7) to add to, change or eliminate any of the provisions of this Indenture (including, without limitation, the covenants
and Events of Default set forth herein) in respect of all or any Securities of any series (and if such addition, change or elimination is to apply with respect to less than all Securities of any series, stating that it is expressly being made to
apply solely with respect to such Securities within such series); provided that any such addition, change or elimination (A) shall neither (i) apply to any Security issued prior to the execution of such supplemental indenture and
entitled to the benefit of such provision nor (ii) modify the rights of the Holder of any such Security with respect to such provision or (B) shall become effective only when there is no such Security Outstanding; or
(8) to establish the form or terms of all or any Securities of any series as permitted by Sections 201 and 301;
or
(9) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of
Section 611(b); or
(10) to comply with the requirements of the Commission in order to effect or maintain the
qualification of this Indenture under the Trust Indenture Act; or
(11) to add to or change any of the provisions of this
Indenture with respect to any Securities that by their terms may be converted into securities or other property other than Securities of the same series and of like tenor, in order to permit or facilitate the issuance, payment or conversion of such
Securities; or
(12) to comply with the rules of any applicable Depositary; or
(13) to supplement any of the provisions in this Indenture to such extent as shall be necessary to permit or facilitate the
Defeasance and discharge or Covenant Defeasance of any Securities pursuant to Article Thirteen; provided, in each case, that any such action shall not adversely affect the interests of the Holders of Securities or any other Securities
in any material respect; or
55
(14) to cure any ambiguity, to correct or supplement any provision herein which
may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture, provided that such action pursuant to this Clause (14) shall not
adversely affect the interests of the Holders of any Securities in any material respect.
Section 902. Supplemental Indentures With Consent of
Holders.
Except as may otherwise be provided pursuant to Section 301 for all or any specific Securities of any series,
with the consent of the Holders of not less than a majority in principal amount of all Outstanding Securities of each series affected by such supplemental indenture, by Act of said Holders delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of such affected Securities under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or any installment of principal of or interest on, any
Security, or reduce the principal amount thereof or the rate of, interest thereon or any premium payable upon the redemption thereof, or reduce the amount of the principal of an Original Issue Discount Security or any other Security which would be
due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502, or adversely affect any right of repayment at the option of the Holder of any Security, or reduce the amount of, or postpone the date
fixed for, the payment of any sinking fund or analogous obligation, or change any Place of Payment where, or the coin or currency in which, any Security or any premium or interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or
(2) if any Security provides that the Holder may require the Company to convert such Security, impair such Holder’s right
to require conversion of such Security on the terms provided therein, or
(3) reduce the percentage in principal amount of
any Outstanding Securities, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this Indenture, or
56
(4) modify any of the provisions of this Section 902,
Section 513 or Section 1006, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security
affected thereby, provided, however, that this Clause shall not be deemed to require the consent of any Holder with respect to changes in the references to the “Trustee”, and concomitant changes in this
Section 902 and Section 1006, or the deletion of this proviso, in accordance with the requirements of Sections 611(b) and 901(9).
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 Securities or series, or which modifies the rights of the Holders of such Securities or 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 any other Securities or of any other series, as applicable.
It shall not be necessary for any Act of Holders under this
Section 902 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article Nine or the
modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or
otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article Nine, this Indenture shall be modified in accordance therewith, and
such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article Nine shall conform to the requirements of the Trust Indenture Act.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article Nine
may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series so modified as to conform, in
the opinion of the Trustee and 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.
57
ARTICLE TEN
Covenants
Section 1001. Payment
of Principal, Premium 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 premium, if any, on) and interest, if any, on the Securities of that series in accordance with the terms of the Securities and this Indenture.
The Company shall have the right to require a Holder, in connection with the payment of the principal of (and premium, if any, on) or
interest, if any, on a Security, to provide the Company with a copy of an appropriate, executed IRS Form W-8 or W-9 (as applicable) or any applicable amended or successor version of such forms. Notwithstanding anything to the contrary contained in
this Indenture, except as may otherwise be provided pursuant to Section 301 for all or any specific Securities of any series, the Company, the Trustee or the Paying Agent may, to the extent it is required to do so by applicable law,
deduct or withhold taxes imposed by the United States of America or other domestic or foreign taxing authorities from the principal of (and premium, if any) and interest payments hereunder or under any Security.
Section 1002. 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, exchange or conversion, 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 initially appoints the principal corporate trust office of the Bank as its agent for purposes of presentation and surrender of Securities for payment, conversion, registration of transfer or exchange and for
service of notices and demands to or upon the Company in respect of the Securities and this Indenture. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands; provided that nothing herein shall require the Trustee to accept service of process on behalf of the
Company.
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.
58
With respect to any Global Security, and except as otherwise may be specified for such Global
Security as contemplated by Section 301, the principal corporate trust office of the Bank (or any successor office appointed pursuant to this Section 1002) shall be the Place of Payment where such Global Security may be
presented or surrendered for payment or conversion or for registration of transfer or exchange, or where successor Securities may be delivered in exchange therefor, provided, however, that any such payment, presentation, surrender or
delivery effected pursuant to the Applicable Procedures of the Depositary for such Global Security shall be deemed to have been effected at the Place of Payment for such Global Security in accordance with the provisions of this Indenture.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of
the principal of (or premium, if any, on) or interest, if any, 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 (or premium, if any) or
interest, if any, 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 of its failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, prior to each due date of the principal of
(or premium, if any, on) or interest, if any, on any Securities of that series, deposit (or, if the Company has deposited any trust funds with a trustee pursuant to Section 1304(1), cause such trustee to 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 of its 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 1003, that such Paying Agent will (1) comply with the provisions of the Trust Indenture Act applicable to it as a Paying
Agent and (2) during the continuance of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment in respect of the Securities of that series, upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Securities of that series.
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. If the Company fails to make any payment contemplated by this paragraph, the Company shall promptly notify the Trustee of such failure so to act.
59
Subject to applicable law, any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (or premium, if any, on) or interest, if any, on any Security of any series and remaining unclaimed for two years after such principal (or premium, if any) or interest, if any, has become
due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company 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 repayment, may at the expense of the Company cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in the
Borough of Manhattan, The City of New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
The Bank is initially authorized as Paying Agent hereunder. For the avoidance of doubt, at any time after
the date of this Indenture, the Company may authorize the Trustee or any other Person as Paying Agent, subject to the provisions of this Section 1003.
Any Person into which a Paying Agent may be merged or converted or with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Paying Agent shall be a party, or any Person succeeding to the corporate agency or corporate trust business of such an Paying Agent, shall continue to be a Paying Agent, without the execution or filing of
any paper or any further act on the part of the Company or such Paying Agent.
A Paying Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Company may at any time terminate the agency of a Paying Agent by giving written notice thereof to such Paying Agent and the Trustee. Upon receiving such a notice of resignation or upon such a
termination, the Company may authorize a successor Paying Agent. Any successor Paying Agent authorized pursuant to this Section 1003 upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as a Paying Agent.
Section 1004. 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 that a review of the activities of the Company during such year and of the Company’s performance under this Indenture has been made under the supervision of the signers thereof, stating whether or
not to the best knowledge of the 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.
60
Section 1005. Limitation on Disposition of Stock of Bank.
So long as any Securities shall be Outstanding, but subject to the provisions of Article Eight, neither the Company nor any Intermediate
Subsidiary (as hereinafter defined) will (except to the Company or an Intermediate Subsidiary) sell, assign, transfer, grant a security interest in or otherwise dispose of any shares of, securities convertible into, or options, warrants or rights to
subscribe for or purchase shares of, Voting Stock of the Bank, nor will the Company or any Intermediate Subsidiary permit the Bank to issue any shares of, or securities convertible into, or options, warrants or rights to subscribe for or purchase
shares of, Voting Stock of the Bank, nor will the Company permit any Intermediate Subsidiary that owns any shares of, or securities convertible into, or options, warrants or rights to subscribe for or purchase shares of, Voting Stock of the Bank to
cease to be an Intermediate Subsidiary, except that (i) the Company or an Intermediate Subsidiary may make any such sale, assignment, transfer, or grant of a security interest or other disposition for fair market value on the date thereof, as
determined by the Board of Directors of the Company or such Intermediate Subsidiary, as the case may be (which determination shall be conclusive), and evidenced by a duly adopted resolution thereof, and (ii) in each such case, after giving
effect thereto, the Company and any one or more Intermediate Subsidiaries will own at least 80% of the Voting Stock of the Bank then issued and outstanding free and clear of any security interest. Notwithstanding the foregoing, the Bank may be
merged into or consolidated with another banking institution organized under the laws of the United States, any State thereof or the District of Columbia, if after giving effect to such merger or consolidation the Company and any one or more
Intermediate Subsidiaries own at least 80% of the Voting Stock of such other banking institution and immediately after giving effect thereto and treating any such resulting bank thereafter as the Bank for purposes of this Indenture, 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. For purposes of this Section 1005, an “Intermediate Subsidiary” means a
Subsidiary (i) that is organized under the laws of the United States, any State thereof or the District of Columbia, and (ii) of which all the shares of each class of capital stock issued and outstanding, and all securities convertible
into, and options, warrants and rights to subscribe for or purchase shares of, such capital stock, are owned directly or indirectly by the Company, free and clear of any security interest.
Section 1006. Waiver of Certain Covenants.
Except as otherwise provided pursuant to Section 301 for all or any Securities of any series, the Company may, with respect to all
or any Securities of any series, omit in any particular instance to comply with any term, provision or condition set forth in any covenant provided pursuant to Sections 301(xviii), 901(2) or 901(7) for the benefit of the
Holders of such series or in any of Article Eight or Section 1005 if before the time for such compliance the Holders of at least a majority in principal amount of the Outstanding Securities of such series shall, by Act of such
Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so 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. For the avoidance of doubt, this Section 1006
shall not apply to any covenant of the Company to pay the principal of (and premium, if any, on) and interest, if any, on the Securities.
61
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for such Securities) in accordance with this Article Eleven.
Section 1102.
Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be established in or pursuant to
a Board Resolution or in another manner specified as contemplated by Section 301 for such Securities. In case of any redemption at the election of the Company of less than all the Securities of any series (including any such redemption
affecting only a single Security), the Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Security Registrar, notify the Security Registrar of such Redemption Date,
of the principal amount of Securities of such series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided
in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee and the Security Registrar with an Officers’ Certificate evidencing compliance with such restriction.
Section 1103. Selection by Security Registrar 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 or unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Security Registrar, from the Outstanding Securities of such
series subject to redemption and not previously called for redemption, by such method as the Security Registrar shall deem fair and appropriate and which may provide for the selection for redemption of a portion of the principal amount of any
Security of such series, provided, that to the extent the Securities of such series to be redeemed are in the form of a Global Security, the Securities of such series to be redeemed shall be selected in accordance with the Applicable
Procedures, and provided further that the unredeemed portion of the principal amount of any Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security. If less than all
the Securities of such series and of a specified tenor are to be redeemed (unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 45 days prior to the Redemption Date by the
Security Registrar, or in accordance with the Applicable Procedures, as the case may be, from the Outstanding Securities of such series and specified tenor not previously called for redemption in accordance with the preceding sentence.
If any Security selected for partial redemption is converted in part before termination of the conversion right with respect to the portion of
the Security so selected, the converted portion of such Security shall be deemed (so far as may be) to be the portion selected for redemption. Securities which have been converted during a selection of Securities to be redeemed shall be treated by
the Security Registrar as Outstanding for the purpose of such selection.
62
Unless the Securities to be redeemed are in the form of a Global Security, the Security Registrar
shall promptly notify the Company and the Trustee in writing of the Securities selected for redemption as set forth above and, in case of any Securities selected for partial redemption as set forth above, the principal amount thereof to be redeemed.
The provisions of the first and third preceding paragraphs shall not apply with respect to any redemption affecting only a single
Security, whether such Security is to be redeemed in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 106 not less than 10 days nor more than 60 days prior to the
Redemption Date (or within such period as otherwise specified as contemplated by Section 301 for the relevant Securities), to each Holder of Securities to be redeemed, at his or her address appearing in the Security Register or, if the
Securities to be redeemed are in the form of Global Securities, in accordance with the Applicable Procedures.
All notices of redemption
shall identify the Securities to be redeemed (including, subject to Section 311, CUSIP numbers, if any) and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such Securities, the principal amounts) of the particular Securities to be redeemed and, if less than all, the Outstanding Securities of any series consisting of a single Security are to
be redeemed, the principal amount of the particular Security to be redeemed,
(4) that on the Redemption Date the
Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date,
63
(5) for any Securities that by their terms may be converted, the terms of
conversion, the date on which the right to convert the Security to be redeemed will terminate and the place or places where such Securities may be surrendered for conversion,
(6) the place or places where each such Security is are to be surrendered for payment of the Redemption Price, and
(7) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s
request, delivered at least 5 Business Days prior to the date such notice is to be given (unless a shorter period of time shall be acceptable to the Security Registrar), by the Security Registrar in the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date, other than any Securities called for redemption on that date which have been converted prior to the date of such deposit.
If any Security called for redemption is converted, any money deposited with the Trustee or with any Paying Agent or so segregated and held in
trust for the redemption of such Security shall (subject to any right of the Holder of such Security or any Predecessor Security to receive interest as provided in the last two paragraphs of Section 307 or in the terms of such Security)
be paid to the Company upon Company Request or, if then held by the Company, shall be discharged from such trust.
Section 1106. Securities
Payable on Redemption Date.
Notice of redemption having been given as set forth above, 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 301, installments of interest whose Stated Maturity is prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates, and installments of interest whose Stated Maturity is on the Redemption Date will be payable to the Holders of such Securities to whom the principal shall be payable, in each
case, according to their terms and the provisions of Section 307.
64
If any Security called for redemption shall not be so paid upon surrender thereof for redemption,
the principal (and premium, if any) and, if applicable, overdue interest shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Security
Registrar so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder thereof or his or her attorney duly authorized in writing), and the Company
shall execute, and the Authenticating Agent 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. If a Global Security is so surrendered, such new Security so issued shall be a new Global Security.
ARTICLE TWELVE
Sinking
Funds
Section 1201. Applicability of Article.
The provisions of this Article Twelve shall be applicable to any sinking fund for the retirement of Securities of any series except as
otherwise specified as contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment
provided for by the terms of any Securities is herein referred to as a “mandatory sinking fund payment”, and any payment in excess of such minimum amount provided for by the terms of such Securities is herein referred to as an
“optional sinking fund payment”. If provided for by the terms of any Securities, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to
the redemption of such Securities as provided for by the terms of such Securities.
Section 1202. 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 converted in accordance with their terms or 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 any Securities of such series required to be made pursuant to the terms of
such Securities as and to the extent provided for by the terms of such Securities; provided, that the Securities to be so credited have not been previously so credited. The Securities to be so credited shall be received by the Security
Registrar and credited for such purpose at the Redemption Price, as specified in the Securities so to be redeemed (or at such other prices as may be specified for such Securities as contemplated in Section 301), for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
65
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days (or such shorter period as shall be satisfactory to the Trustee) prior to each sinking fund payment date for any
Securities, the Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing sinking fund payment for such Securities pursuant to the terms of such Securities, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities pursuant to Section 1202 and will also deliver to the Security Registrar any Securities to be so delivered.
Not less than 60 days prior to each such sinking fund payment date the Securities to be redeemed upon such sinking fund payment date shall be selected in the manner specified in Section 1103 and notice of the redemption thereof shall be
given in the name of and at the expense of the Company in the manner provided in Section 1104. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in
Sections 1106 and 1107.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1301. Company’s Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 1302 or Section 1303 applied to any Securities or any
series of Securities, as the case may be, designated pursuant to Section 301 as being defeasible pursuant to such Section 1302 or 1303, in accordance with any applicable requirements provided pursuant to
Section 301 and upon compliance with the conditions set forth below in this Article Thirteen. Any such election shall be evidenced by a Board Resolution or in another manner specified as contemplated by Section 301 for
such Securities.
Section 1302. Defeasance and Discharge.
Upon the Company’s exercise of its option (if any) to have this Section 1302 applied to any Securities or any series of
Securities, as the case may be, the Company shall be deemed to have been discharged from its obligations with respect to such Securities as provided in this Section 1302 on and after the date the conditions set forth in
Section 1304 are satisfied (hereinafter called “Defeasance”). For this purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by such Securities
and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense and direction of the Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until otherwise terminated or discharged hereunder: (1) the rights of Holders of such Securities to receive, solely from the trust fund described in Section 1304 and as more fully
set forth in such Section, payments in respect of the principal of (and premium, if any, on) and interest, if any, on such Securities when payments are due, (2) the Company’s obligations
66
with respect to such Securities under Sections 304, 305, 306, 1002 and 1003, (3) the rights, powers, trusts, duties and immunities of the Trustee
hereunder (including, without limitation, the Company’s obligations to the Trustee under Section 607(3)) and (4) this Article Thirteen. Subject to compliance with this Article Thirteen, the Company may exercise
its option (if any) to have this Section 1302 applied to any Securities notwithstanding the prior exercise of its option (if any) to have Section 1303 applied to such Securities. For the avoidance of doubt, following a
Defeasance of any series of Securities, payment of the Securities of such series may not be accelerated because of an Event of Default.
Section 1303. Covenant Defeasance.
Upon the Company’s exercise of its option (if any) to have this Section 1303 applied to any Securities or any series of
Securities, as the case may be, (1) the Company shall be released from its obligations under Section 1005 and any covenants provided pursuant to Section 301(xviii), 901(2) or 901(7) for the benefit of the
Holders of such Securities, (2) the occurrence of any event specified in Sections 501(4) (with respect to Section 1005 and any such covenants provided pursuant to Section 301(xviii), 901(2) or
901(7)) and, if applicable, pursuant to 501(7) shall be deemed not to be or result in an Event of Default, in each case with respect to such Securities as provided in this Section 1303 on and after the date the conditions
set forth in Section 1304 are satisfied (hereinafter called “Covenant Defeasance”). For this purpose, such Covenant Defeasance means that, with respect to such Securities, the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in any such specified Section (to the extent so specified in the case of Section 501(4)), whether directly or indirectly by reason of any reference elsewhere
herein to any such Section or by reason of any reference in any such Section to any other provision herein or in any other document, but the remainder of this Indenture and such Securities shall be unaffected thereby. For the avoidance of doubt,
following a Covenant Defeasance with respect to any Securities or series of Securities, payment of the Securities of such series of Securities may not be accelerated because of an Event of Default specified in Clause (2) of this
Section 1303.
Section 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions precedent or, as specifically noted below, subsequent to application of either Section 1302
or Section 1303 to the Securities or any series of Securities, as the case may be:
(1) The Company shall
irrevocably have deposited or caused to be deposited with the Trustee (or another trustee which satisfies the requirements contemplated by Section 609 and agrees to comply with the provisions of this Article Thirteen applicable to
it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities, (A) money in an amount, or (B) U.S. Government
Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day prior to the due date of any payment, money in an amount, (C)) such other obligations or
arrangements as may be specified as contemplated by Section 301 with respect to such Securities or (D) a combination thereof, in each case sufficient, in the opinion of a nationally recognized firm of
67
independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or any such other qualifying
trustee) to pay and discharge, (i) the principal of (and premium, if any, on) and interest, if any, on such Securities on the respective Stated Maturities, to maturity or redemption, as the case may be, and (ii) any mandatory sinking fund
payments or analogous payments applicable to the Outstanding Securities of such series on the due dates thereof. Before such a deposit the Company may make arrangements satisfactory to the Trustee for the redemption of Securities at a future date or
dates in accordance with the terms of this Indenture and such Securities. As used herein, “U.S. Government Obligation” means (x) any security which is (i) a direct obligation of the United States of America for the payment
of which the full faith and credit of the United States of America is pledged or (ii) an obligation of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case (i) or (ii), is not callable or redeemable at the option of the issuer thereof, and (y) any depositary receipt issued
by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any U.S. Government Obligation which is specified in Clause (x) above and held by such bank for the account of the holder of such depositary
receipt, or with respect to any specific payment of principal of or interest on any U.S. Government Obligation which is so specified and held, provided that (except as required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of principal or interest evidenced by such depositary receipt.
(2) No event which is, or after notice or lapse of time or both would become, an Event of Default with respect to such
Securities or any other Securities shall have occurred and be continuing at the time of such deposit or, with regard to any such event specified in Sections 501(5) and (6), at any time on or prior to the 90th day after the date of
such deposit (it being understood that this condition shall not be deemed satisfied until after such 90th day).
(3) Such Defeasance or Covenant Defeasance shall not (A) 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 the Trust Indenture Act) or (B) result in the trust arising from such deposit constituting an investment company within the meaning of the
Investment Company Act unless such trust shall be registered under the Investment Company Act or exempt from registration thereunder.
(4) Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any
other agreement or instrument to which the Company is a party or by which it is bound.
(5) Such Defeasance or Covenant
Defeasance shall not cause any Securities of such series then listed on any registered national securities exchange under the Exchange Act to be delisted.
68
(6) In the event of an election to have Section 1302 apply to any
Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (A) the Company has received from, or there has been published by, the Internal Revenue Service a
ruling or (B) since the date of this Indenture, there has been a change in the applicable Federal income tax law, in either case (A) or (B) to the effect that, and based thereon such opinion shall confirm that, the Holders of such
Securities will not recognize gain or loss for Federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to such Securities and will be subject to Federal income tax on the same amount, in the same
manner and at the same times as would be the case if such deposit, Defeasance and discharge were not to occur.
(7) In the
event of an election to have Section 1303 apply to any Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Securities
will not recognize gain or loss for Federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Securities and will be subject to Federal income tax on the same amount, in the same manner and at
the same times as would be the case if such deposit and Covenant Defeasance were not to occur.
(8) Such defeasance or
covenant defeasance shall be effected in compliance with any additional terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 301.
(9) The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that
all conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with.
Section 1305. Deposited Money and U.S.
Government Obligations to Be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the fifth paragraph of
Section 1003, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee or other qualifying trustee (solely for purposes of this Section 1305, the Trustee and any such other trustee
are referred to collectively as the “Trustee”) pursuant to Section 1304 in respect of any Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to
the payment, either directly or through any such Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities, of all sums due and to become due thereon in respect of principal
and any premium and interest, but money so held in trust need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee and any Paying Agent against any tax, fee or other charge imposed on or assessed against the
U.S. Government Obligations deposited pursuant to Section 1304 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of Outstanding
Securities.
69
Anything in this Article Thirteen to the contrary notwithstanding, the Trustee or Paying
Agent, as applicable, shall deliver or pay to the Company from time to time upon Company Request any money or U.S. Government Obligations held by it as provided in Section 1304 with respect to any Securities which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect the Defeasance or Covenant
Defeasance, as the case may be, with respect to such Securities.
Anything herein to the contrary notwithstanding, if and to the extent
the deposited money or U.S. Government Obligations (or the proceeds thereof) either (i) cannot be applied by the Trustee in accordance with this Section 1305 because of a court order or (ii) are for any reason insufficient in
amount, then the Company’s obligations to pay principal of (and premium, if any) and interest (if any) on the Securities of such series shall be reinstated to the extent necessary to cover the deficiency on any due date for payment. In any case
specified in Clause (i), the Company’s interest in the deposited money and U.S. Government Obligations (and proceeds thereof) shall be reinstated to the extent the Company’s payment obligations are reinstated.
This instrument 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.
70
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, and their
respective corporate seals to be hereunto affixed and attested, all as of the day and year first above written.
|
|
|
|
|
| THE BANK OF NEW YORK MELLON CORPORATION |
|
|
| By |
|
/s/ Scott Freidenrich |
|
|
Title: Name: |
|
Executive Vice President and Treasurer Scott
Freidenrich |
|
|
|
| [Corporate Seal] |
|
| Attest: |
|
| /s/ Craig T. Beazer |
| Title: Name: |
|
Secretary Craig T. Beazer |
|
|
|
|
|
| DEUTSCHE BANK TRUST COMPANY AMERICAS |
|
|
| By |
|
/s/ Julia Engel |
|
|
Title: Name: |
|
Vice President Julia Engel |
|
|
| By |
|
/s/ Carol Ng |
|
|
Title: Name: |
|
Vice President Carol Ng |
Signature Page to
Senior Debt Indenture
71
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 9th day of February, 2016, before me personally came Craig T. Beazer, to me known, who, being by me duly sworn, did depose and say that
he or she is the Secretary of THE BANK OF NEW YORK MELLON CORPORATION, one of the corporations described in and which executed the foregoing instrument; that he or she knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation, and that he or she signed his or her name thereto by like authority.
|
|
| /S/ SYLVIA COHEN |
| Notary Public in and for said State |
(NOTARIAL SEAL)
Signature Page to
Senior Debt Indenture
72
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 9th day of February, 2016, before me personally came Scott Freidenrich, to me known, who, being by me duly sworn, did depose and say
that he or she is an Executive Vice President and the Treasurer of THE BANK OF NEW YORK MELLON CORPORATION, one of the corporations described in and which executed the foregoing instrument; that he or she knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation, and that he or she signed his or her name thereto by like authority.
|
|
| /S/ SYLVIA COHEN |
| Notary Public in and for said State |
(NOTARIAL SEAL)
Signature Page to
Senior Debt Indenture
73
Exhibit 4.10
THE BANK OF NEW YORK MELLON
CORPORATION
TO
WILMINGTON TRUST, NATIONAL ASSOCIATION
Trustee
SENIOR SUBORDINATED DEBT INDENTURE
Dated as of February 9, 2016
THE BANK OF NEW YORK MELLON CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939
and Senior Subordinated Debt Indenture, dated as of February 9, 2016
|
|
|
|
|
| Trust Indenture
Act Section |
|
Indenture Section |
| § 310 |
|
(a)(1) |
|
609 |
|
|
(a)(2) |
|
609 |
|
|
(a)(3) |
|
Not Applicable |
|
|
(a)(4) |
|
Not Applicable |
|
|
(b) |
|
608, 610 |
| § 311 |
|
(a) |
|
613 |
|
|
(b) |
|
613 |
| § 312 |
|
(a) |
|
701, 702 |
|
|
(b) |
|
702 |
|
|
(c) |
|
702 |
| § 313 |
|
(a) |
|
703 |
|
|
(b) |
|
703 |
|
|
(c) |
|
703 |
|
|
(d) |
|
703 |
| § 314 |
|
(a) |
|
704 |
|
|
(a)(4) |
|
101, 1004 |
|
|
(b) |
|
Not Applicable |
|
|
(c)(1) |
|
102 |
|
|
(c)(2) |
|
102 |
|
|
(c)(3) |
|
Not Applicable |
|
|
(d) |
|
Not Applicable |
|
|
(e) |
|
102 |
| § 315 |
|
(a) |
|
601 |
|
|
(b) |
|
602 |
|
|
(c) |
|
601 |
|
|
(d) |
|
601 |
|
|
(e) |
|
514 |
| § 316 |
|
(a) |
|
101 |
|
|
(a)(1)(A) |
|
502, 512 |
|
|
(a)(1)(B) |
|
513 |
|
|
(a)(2) |
|
Not Applicable |
|
|
(b) |
|
508 |
|
|
(c) |
|
104 |
| § 317 |
|
(a)(1) |
|
503 |
|
|
(a)(2) |
|
504 |
|
|
(b) |
|
1003 |
| § 318 |
|
(a) |
|
107 |
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.
TABLE OF CONTENTS
|
|
|
|
|
|
|
| |
|
|
|
Page |
|
| PARTIES |
|
|
1 |
|
| RECITALS OF THE COMPANY |
|
|
1 |
|
|
| ARTICLE ONE |
|
|
| DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION |
|
|
|
|
| Section 101. |
|
Definitions |
|
|
1 |
|
| Section 102. |
|
Compliance Certificates and Opinions |
|
|
8 |
|
| Section 103. |
|
Form of Documents Delivered to Trustee |
|
|
9 |
|
| Section 104. |
|
Acts of Holders; Record Dates |
|
|
10 |
|
| Section 105. |
|
Notices, Etc., to Trustee and Company |
|
|
12 |
|
| Section 106. |
|
Notice to Holders; Waiver |
|
|
12 |
|
| Section 107. |
|
Conflict with Trust Indenture Act |
|
|
13 |
|
| Section 108. |
|
Effect of Headings and Table of Contents |
|
|
13 |
|
| Section 109. |
|
Successors and Assigns |
|
|
13 |
|
| Section 110. |
|
Separability Clause |
|
|
13 |
|
| Section 111. |
|
Benefits of Indenture |
|
|
13 |
|
| Section 112. |
|
Governing Law |
|
|
13 |
|
| Section 113. |
|
Legal Holidays |
|
|
14 |
|
| Section 114. |
|
Waiver of Jury Trial |
|
|
14 |
|
| Section 115. |
|
Certain Anti-Money Laundering Matters |
|
|
14 |
|
| Section 116. |
|
Force Majeure |
|
|
14 |
|
| Section 117. |
|
Certain Tax Matters |
|
|
15 |
|
|
| ARTICLE TWO |
|
|
| SECURITY FORMS |
|
|
|
|
| Section 201. |
|
Forms Generally |
|
|
15 |
|
| Section 202. |
|
Form of Face of Security |
|
|
15 |
|
| Section 203. |
|
Form of Reverse of Security |
|
|
17 |
|
| Section 204. |
|
Form of Legend for Global Securities |
|
|
22 |
|
| Section 205. |
|
Form of Certificate of Authentication |
|
|
22 |
|
|
| ARTICLE THREE |
|
|
| THE SECURITIES |
|
|
|
|
| Section 301. |
|
Amount Unlimited; Issuable in Series |
|
|
22 |
|
| Section 302. |
|
Denominations |
|
|
26 |
|
TABLE OF CONTENTS
Continued
|
|
|
|
|
|
|
| |
|
|
|
Page |
|
| Section 303. |
|
Execution, Authentication, Delivery and Dating |
|
|
26 |
|
| Section 304. |
|
Temporary Securities |
|
|
28 |
|
| Section 305. |
|
Registration, Registration of Transfer and Exchange |
|
|
28 |
|
| Section 306. |
|
Mutilated, Destroyed, Lost and Stolen Securities |
|
|
31 |
|
| Section 307. |
|
Payment of Interest; Interest Rights Preserved |
|
|
32 |
|
| Section 308. |
|
Persons Deemed Owners |
|
|
34 |
|
| Section 309. |
|
Cancellation |
|
|
34 |
|
| Section 310. |
|
Computation of Interest |
|
|
34 |
|
| Section 311. |
|
CUSIP Numbers |
|
|
35 |
|
|
| ARTICLE FOUR |
|
|
| SATISFACTION AND DISCHARGE |
|
|
|
|
| Section 401. |
|
Satisfaction and Discharge of Indenture |
|
|
35 |
|
| Section 402. |
|
Application of Trust Money |
|
|
36 |
|
|
| ARTICLE FIVE |
|
|
| REMEDIES |
|
|
|
|
| Section 501. |
|
Events of Default |
|
|
36 |
|
| Section 502. |
|
Acceleration of Maturity; Rescission and Annulment |
|
|
37 |
|
| Section 503. |
|
Collection of Indebtedness and Suits for Enforcement by Trustee |
|
|
38 |
|
| Section 504. |
|
Trustee May File Proofs of Claim |
|
|
40 |
|
| Section 505. |
|
Trustee May Enforce Claims Without Possession of Securities |
|
|
41 |
|
| Section 506. |
|
Application of Money Collected |
|
|
41 |
|
| Section 507. |
|
Limitation on Suits |
|
|
41 |
|
| Section 508. |
|
Unconditional Right of Holders to Receive Principal, Premium and Interest and to Convert |
|
|
42 |
|
| Section 509. |
|
Restoration of Rights and Remedies |
|
|
42 |
|
| Section 510. |
|
Rights and Remedies Cumulative |
|
|
42 |
|
| Section 511. |
|
Delay or Omission Not Waiver |
|
|
43 |
|
| Section 512. |
|
Control by Holders |
|
|
43 |
|
| Section 513. |
|
Waiver of Past Defaults |
|
|
43 |
|
| Section 514. |
|
Undertaking for Costs |
|
|
43 |
|
| Section 515. |
|
Waiver of Usury, Stay or Extension Laws |
|
|
44 |
|
- ii -
TABLE OF CONTENTS
Continued
|
|
|
|
|
|
|
| |
|
|
|
Page |
|
| ARTICLE SIX |
|
|
| THE TRUSTEE |
|
|
|
|
| Section 601. |
|
Certain Duties and Responsibilities |
|
|
44 |
|
| Section 602. |
|
Notice of Defaults |
|
|
45 |
|
| Section 603. |
|
Certain Rights of Trustee |
|
|
45 |
|
| Section 604. |
|
Not Responsible for Recitals or Issuance of Securities |
|
|
47 |
|
| Section 605. |
|
May Hold Securities |
|
|
47 |
|
| Section 606. |
|
Money Held in Trust |
|
|
47 |
|
| Section 607. |
|
Compensation and Reimbursement |
|
|
47 |
|
| Section 608. |
|
Disqualification; Conflicting Interests |
|
|
48 |
|
| Section 609. |
|
Corporate Trustee Required; Eligibility |
|
|
48 |
|
| Section 610. |
|
Resignation and Removal; Appointment of Successor |
|
|
49 |
|
| Section 611. |
|
Acceptance of Appointment by Successor |
|
|
50 |
|
| Section 612. |
|
Merger, Conversion, Consolidation or Succession to Business |
|
|
51 |
|
| Section 613. |
|
Preferential Collection of Claims Against Company |
|
|
51 |
|
| Section 614. |
|
Appointment of Authenticating Agent |
|
|
51 |
|
|
| ARTICLE SEVEN |
|
|
| HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY |
|
|
|
|
| Section 701. |
|
Company to Furnish Trustee Names and Addresses of Holders |
|
|
53 |
|
| Section 702. |
|
Preservation of Information; Communications to Holders |
|
|
53 |
|
| Section 703. |
|
Reports by Trustee |
|
|
54 |
|
| Section 704. |
|
Reports by Company |
|
|
54 |
|
|
| ARTICLE EIGHT |
|
|
| CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE |
|
|
|
|
| Section 801. |
|
Company May Consolidate, Etc., Only on Certain Terms |
|
|
54 |
|
| Section 802. |
|
Successor Substituted |
|
|
55 |
|
|
| ARTICLE NINE |
|
|
| SUPPLEMENTAL INDENTURES |
|
|
|
|
| Section 901. |
|
Supplemental Indentures Without Consent of Holders |
|
|
55 |
|
| Section 902. |
|
Supplemental Indentures with Consent of Holders |
|
|
57 |
|
| Section 903. |
|
Execution of Supplemental Indentures |
|
|
58 |
|
- iii -
TABLE OF CONTENTS
Continued
|
|
|
|
|
|
|
| |
|
|
|
Page |
|
| Section 904. |
|
Effect of Supplemental Indentures |
|
|
58 |
|
| Section 905. |
|
Conformity with Trust Indenture Act |
|
|
59 |
|
| Section 906. |
|
Reference in Securities to Supplemental Indentures |
|
|
59 |
|
| Section 907. |
|
Subordination Unimpaired |
|
|
59 |
|
|
| ARTICLE TEN |
|
|
| COVENANTS |
|
|
|
|
| Section 1001. |
|
Payment of Principal, Premium and Interest |
|
|
59 |
|
| Section 1002. |
|
Maintenance of Office or Agency |
|
|
59 |
|
| Section 1003. |
|
Money for Securities Payments to Be Held in Trust |
|
|
60 |
|
| Section 1004. |
|
Statement by Officers as to Default |
|
|
62 |
|
| Section 1005. |
|
Waiver of Certain Covenants |
|
|
62 |
|
|
| ARTICLE ELEVEN |
|
|
| REDEMPTION OF SECURITIES |
|
|
|
|
| Section 1101. |
|
Applicability of Article |
|
|
62 |
|
| Section 1102. |
|
Election to Redeem; Notice to Trustee |
|
|
63 |
|
| Section 1103. |
|
Selection by Security Registrar of Securities to Be Redeemed |
|
|
63 |
|
| Section 1104. |
|
Notice of Redemption |
|
|
64 |
|
| Section 1105. |
|
Deposit of Redemption Price |
|
|
65 |
|
| Section 1106. |
|
Securities Payable on Redemption Date |
|
|
65 |
|
| Section 1107. |
|
Securities Redeemed in Part |
|
|
65 |
|
|
| ARTICLE TWELVE |
|
|
| SINKING FUNDS |
|
|
|
|
| Section 1201. |
|
Applicability of Article |
|
|
66 |
|
| Section 1202. |
|
Satisfaction of Sinking Fund Payments with Securities |
|
|
66 |
|
| Section 1203. |
|
Redemption of Securities for Sinking Fund |
|
|
66 |
|
|
| ARTICLE THIRTEEN |
|
|
| SUBORDINATION OF SECURITIES |
|
|
|
|
| Section 1301. |
|
Securities Subordinate to Senior Indebtedness |
|
|
67 |
|
| Section 1302. |
|
Payment Over of Proceeds Upon Dissolution, Etc. |
|
|
67 |
|
| Section 1303. |
|
Prior Payment to Senior Indebtedness Upon Acceleration of Securities |
|
|
68 |
|
- iv -
TABLE OF CONTENTS
Continued
|
|
|
|
|
|
|
| |
|
|
|
Page |
|
| Section 1304. |
|
No Payment When Senior Indebtedness in Default |
|
|
69 |
|
| Section 1305. |
|
Payment Permitted in Certain Situations |
|
|
70 |
|
| Section 1306. |
|
Subrogation to Rights of Holders of Senior Indebtedness |
|
|
70 |
|
| Section 1307. |
|
Provisions Solely to Define Relative Rights |
|
|
71 |
|
| Section 1308. |
|
Trustee to Effectuate Subordination and Payment Provisions |
|
|
71 |
|
| Section 1309. |
|
No Waiver of Subordination Provisions |
|
|
71 |
|
| Section 1310. |
|
Notice to Trustee |
|
|
72 |
|
| Section 1311. |
|
Reliance on Judicial Order or Certificate of Liquidating Agent |
|
|
72 |
|
| Section 1312. |
|
Trustee Not Fiduciary for Holders of Senior Indebtedness |
|
|
73 |
|
| Section 1313. |
|
Rights of Trustee as Holder of Senior Indebtedness; Preservation of Trustee’s Rights |
|
|
73 |
|
| Section 1314. |
|
Article Applicable to Paying Agents |
|
|
73 |
|
| Section 1315. |
|
Securities to Rank Pari Passu with Existing Senior Subordinated Indebtedness |
|
|
73 |
|
|
| ARTICLE FOURTEEN |
|
|
| DEFEASANCE AND COVENANT DEFEASANCE |
|
|
|
|
| Section 1401. |
|
Company’s Option to Effect Defeasance or Covenant Defeasance |
|
|
74 |
|
| Section 1402. |
|
Defeasance and Discharge |
|
|
74 |
|
| Section 1403. |
|
Covenant Defeasance |
|
|
74 |
|
| Section 1404. |
|
Conditions to Defeasance or Covenant Defeasance |
|
|
75 |
|
| Section 1405. |
|
Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions |
|
|
77 |
|
|
|
| TESTIMONIUM |
|
|
79 |
|
| SIGNATURES AND SEALS |
|
|
79 |
|
| ACKNOWLEDGMENTS |
|
|
80 |
|
- v -
SENIOR SUBORDINATED DEBT INDENTURE, dated as of February 9, 2016, between THE BANK OF NEW YORK
MELLON CORPORATION, a corporation duly organized and existing under the laws of the State of Delaware (herein called the “Company”), having its principal office at 225 Liberty Street, New York, New York 10286, and WILMINGTON TRUST,
NATIONAL ASSOCIATION, a national banking association duly organized and existing under the laws of the United States of America, as Trustee (herein called the “Trustee”).
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 senior subordinated debentures, notes or other evidences of indebtedness (herein called the
“Securities”), to be issued in one or more series as in this Indenture provided.
All things necessary to make this
Indenture a valid agreement of the Company in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101.
Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article One have the meanings assigned to them in this Article One 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, 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 at the date of such computation; provided that when two or more principles are so generally accepted, it shall mean the set of
principles consistent with those in use by the Company;
(4) unless the context otherwise requires, any reference to an
“Article” or a “Section” refers to an Article or a Section, as the case may be, of this Indenture;
(5)
the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision; and
(6) when used with respect to any Security, the words “convert”, “converted” and “conversion” are
intended to refer to the right of the Holder or the Company to convert or exchange such Security into or for securities or other property in accordance with such terms, if any, as may hereafter be specified for such Security as contemplated by
Section 301, and these words are not intended to refer to any right of the Holder or the Company to exchange such Security for other Securities of the same series and like tenor pursuant to Sections 304, 305,
306, 906 or 1107 or another similar provision of this Indenture, unless the context otherwise requires; and references herein to the terms of any Security that may be converted mean such terms as may be specified for such
Security as contemplated in Section 301.
“Act”, when used with respect to any Holder, has the meaning
specified in Section 104(a).
“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.
“Applicable Law” has the meaning specified in Section 115.
“Applicable Procedures” of a Depositary means, with respect to any matter at any time, the policies and procedures of such
Depositary, if any, that are applicable to such matter at such time.
“Authenticating Agent” means any Person authorized
by the Trustee pursuant to Section 614 to authenticate Securities.
“Bank” means The Bank of New York Mellon
and its successors (whether by consolidation, merger, conversion, transfer of substantially all their assets and business or otherwise) so long as The Bank of New York Mellon or any successor is a Subsidiary.
“Board of Directors” means either the board of directors of the Company or any duly authorized committee of that board.
-2-
“Board Resolution” means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Business Day”, when used with respect to any Place of Payment, means each day other than a Saturday, Sunday, or any other
day on which banking institutions in that Place of Payment are authorized or obligated by law or executive order to close; provided that, when used with respect to any Security, “Business Day” may have such other meaning, if any, as
may be specified for such Security as contemplated by Section 301.
“Commission” means the Securities and
Exchange Commission, from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties at such time.
“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 of Directors, its Chief Executive Officer, its President, its Controller, a Vice Chairman, or a Vice President, and by its General Counsel, its Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee, Authenticating Agent, Paying Agent or Security Registrar, as applicable.
“Corporate Trust Office” means, with
respect to the office of the Trustee, the designated corporate trust office of the Trustee, at which at any particular time its corporate trust business shall be principally administered, which office at the date hereof is located at 1100 North
Market Street, Wilmington, Delaware 19890, Attn: The Bank of New York Mellon Corporation Medium-Term Note Program Administrator, or such other address in the continental United States as the Trustee may designate from time to time by notice to the
Holders and the Company, or the corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).
“corporation” means a corporation, association, company (including a limited liability company), joint-stock company or
business trust.
“Covenant Defeasance” has the meaning specified in Section 1403.
“Defaulted Interest” has the meaning specified in Section 307.
“Defeasance” has the meaning specified in Section 1402.
“Default” has the meaning specified in Section 503.
“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 that is to act as Depositary for such Securities as contemplated by Section 301.
-3-
“Event of Default” has the meaning specified in Section 501.
“Exchange Act” means the Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time
to time.
“Existing Junior Subordinated Indebtedness” means all (i) securities issued pursuant to the Junior
Subordinated Indenture, dated as of December 3, 1996, between the Company, successor to Mellon Financial Corporation, and The Bank of New York Mellon, as successor trustee, U.S. Bank National Association, as Series C Trustee and Manufacturers
and Traders Trust Company, as Series L Trustee, as amended by the First Supplemental Indenture, dated as of September 19, 2006, the Second Supplemental Indenture, dated as of June 19, 2007, and the Third Supplemental Indenture, dated as of
June 29, 2007, and as the same may be further amended, supplemented or otherwise modified from time to time and (ii) all guarantees made, prior to the date of this Indenture, of securities issued by Mellon Capital III or Mellon Capital IV.
“Existing Senior Subordinated Indebtedness” means all securities issued or guarantees made pursuant to (i) the
Senior Subordinated Indenture, dated as of October 1, 1993, between the Company, successor to The Bank of New York Company, Inc., and Manufacturers and Traders Trust Company, as successor trustee, as amended by the Supplemental Indenture, dated
as of June 29, 2007, and as the same may be further amended, supplemented or otherwise modified from time to time and (ii) the Subordinated Indenture, dated as of June 12, 2000, among Mellon Funding Corporation, as issuer, the Company
(successor to Mellon Financial Corporation), as guarantor, and Union Bank of California, N.A., as successor trustee, as amended by the First Supplemental Indenture , dated as of April 30, 2001, the Second Supplemental Indenture, dated as of
March 5, 2004, and the Third Supplemental Indenture, dated as of June 29, 2007, and as the same may be further amended, supplemented or otherwise modified from time to time.
“Expiration Date” has the meaning specified in Section 104(g).
“Global Security” means a Security that evidences all or part of the Securities of any series and bears the legend set forth
in Section 204 (or such legend as may be specified as contemplated by Section 301 for such Securities).
“Holder” means a Person in whose name a Security is registered in the Security Register.
“Indenture” means this instrument as originally executed and as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part
of and govern this instrument and any such supplemental indenture, respectively. The term “Indenture” shall also include the terms of particular series of Securities established as contemplated by Section 301.
-4-
“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.
“Investment Company
Act” means the Investment Company Act of 1940 and any statute successor thereto, in each case as amended from time to time.
“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 503(c).
“Officers’ Certificate” means a certificate signed by the Chairman of the Board of Directors, its Chief Executive
Officer, its President, its Controller, a Vice Chairman, or a Vice President, and by its General Counsel, its Treasurer, its Secretary or an Assistant Secretary of the Company, and delivered to the Trustee. One of the officers signing an
Officers’ Certificate given pursuant to Section 1004 shall be the principal executive, financial or accounting officer of the Company.
“Opinion of Counsel” means a written opinion of counsel, who may be counsel for or an employee of the Company or an Affiliate
of the Company, and who shall be reasonably acceptable to the Trustee.
“Original Issue Discount Security” means any
Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502.
“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 cancelled by the Security
Registrar or delivered to the Security Registrar for cancellation; and
(ii) Securities for whose payment or redemption
money in the necessary amount has been theretofore deposited with any Paying Agent (including the Trustee, if appointed as Paying Agent, or any other Person, other than the Company, appointed as Paying Agent) 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 that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(iii) Securities as to which Defeasance has been effected
pursuant to Section 1402;
-5-
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Security Registrar proof satisfactory to it
that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company; and
(v) Securities as to which any property deliverable upon conversion thereof has been delivered (or such delivery has been made
available), or as to which any other express conditions, the satisfaction of which will result in such Securities’ ceasing to be deemed outstanding, have been satisfied, in each case as may be provided for such Securities as contemplated in
Section 301;
provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding
Securities have given, made or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date, (A) the principal amount of an Original Issue Discount Security which shall be deemed to be
Outstanding shall be the amount of the principal thereof which would be due and payable as of such date upon acceleration of the Maturity thereof to such date pursuant to Section 502, (B) if, as of such date, the principal amount
payable at the Stated Maturity of a Security is not determinable, the principal amount of such Security which shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated by Section 301, (C) the
principal amount of a Security denominated in one or more foreign currencies, composite currencies or currency units which shall be deemed to be Outstanding shall be the U.S. dollar equivalent, determined as of such date in the manner provided as
contemplated by Section 301, of the principal amount of such Security (or, in the case of a Security described in Clause (A) or (B) above, of the amount determined as provided in such Clause), and (D) Securities owned by
the 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, waiver or other action, only Securities which the Trustee actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the 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 (and premium, if any, on) or interest, if any, on any Securities on behalf of the Company pursuant to Section 1003.
“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
and subject to Section 1002, means the place or places where the principal of (and premium, if any, on) and interest (if any) on the Securities of that series are payable as specified as contemplated by Section 301.
-6-
“Predecessor Security” of any particular Security means every previous Security
evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
“Record Date” means a Regular Record Date or a Special Record Date, as the case may be.
“Redemption Date”, when used with respect to any Security to be redeemed, means the date fixed for such redemption by or
pursuant to this Indenture.
“Redemption Price”, when used with respect to any Security to be redeemed, means the price
at which it is to be redeemed pursuant to this Indenture.
“Regular Record Date” for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that purpose as contemplated by Section 301.
“Responsible Officer” when used with respect to the Trustee, means any vice president, any assistant secretary, any assistant
treasurer, any trust officer, any assistant trust officer or any other officer of the Trustee, in each case, within the corporate trust department of the Trustee who customarily performs functions similar to those performed by the Persons who at the
time shall be such officers, respectively, and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject and who
shall have direct responsibility for the administration of this Indenture.
“Securities” has the meaning stated in the
first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.
“Securities Act” means the Securities Act of 1933 and any statute successor thereto, in each case as amended from time to
time.
“Security Register” and “Security Registrar” have the respective meanings specified in
Section 305.
“Senior Indebtedness” means (i) all indebtedness and obligations (other than the
Securities) of, or guaranteed or assumed by, the Company that are for borrowed money, or are evidenced by bonds, debentures, notes or other similar instruments, or are deferred obligations for the payment of the purchase price of property or assets,
in each case, whether outstanding on the date of this Indenture or thereafter created, incurred, assumed or guaranteed, (ii) obligations of the Company that are similar to those in Clause (i) above and arise from off-balance sheet
guarantees and direct credit substitutes, in each case, whether outstanding on the date of this Indenture or thereafter created, incurred, assumed or guaranteed, and (iii) all obligations of the Company associated with derivative products such
as interest rate and foreign exchange contracts, commodity contracts and similar arrangements, in each case, whether outstanding on the date of this Indenture or thereafter created, incurred, assumed or guaranteed, and, in the case
-7-
of each of Clauses (i), (ii) and (iii) above, all amendments, renewals, extensions, modifications and refundings of such indebtedness and obligations; provided that in each case
Senior Indebtedness shall not include (w) the Securities; (x) the Existing Senior Subordinated Indebtedness; (y) the Existing Junior Subordinated Indebtedness, and (z) such other indebtedness of the Company as is by its terms
expressly stated (A) not to be senior in right of payment to, or (B) to rank pari passu with, or (C) to rank junior in right of payment to, the Securities or the other securities referred to in Clause (x).
“Special Record Date” for the payment of any Defaulted Interest means a date fixed by the Company pursuant to
Section 307.
“Stated Maturity”, when used with respect to any Security or any installment of principal
thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“Subsidiary” means a corporation more than 50% of the outstanding Voting Stock of which is owned, directly or indirectly, by
the Company or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries.
“Trust Indenture
Act” means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date,
“Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument until a successor
Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person,
“Trustee” as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.
“U.S. Government Obligation” has the meaning specified in Section 1404(1).
“Vice President”, when used with respect to the Company or the Trustee, means any vice president, whether or not designated
by a number or a word or words added before or after the title “vice president”.
“Voting Stock” means stock of
the class or classes having a general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of a corporation (irrespective of whether or not at the time stock of any other class or
classes shall have or might have voting power by reason of the happening of any contingency).
Section 102. Compliance Certificates and
Opinions.
Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the
Company shall furnish to the Trustee such certificates and opinions as may be required under the Trust Indenture Act; it being understood that, in
-8-
accordance with Section 303, no such certificates or opinions shall be required in connection with the issuance of Securities that are part of any series as to which such a
certificate or an opinion has been furnished. Each such certificate or opinion shall be given in the form of an Officers’ Certificate, if to be given by an officer 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 certificate or
opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than the certificates provided pursuant to Section 1004) shall include,
(i) a statement that each individual signing such certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(ii) 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;
(iii) a statement
that, in the opinion of each such individual, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any
certificate or opinion of an officer of the 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 or her 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, or in the exercise of
reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
-9-
Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Section 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given,
made or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the 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 601) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section 104.
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness 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 or her the execution thereof. Where such
execution is by a signer acting in a capacity other than his or her individual capacity, such certificate or affidavit shall also constitute sufficient proof of his or her authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.
(c)
The ownership of Securities shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything
done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security.
(e) The Company may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Securities of such series, provided that the Company
may not set a record date for, and the provisions of this Section 104(e) shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in Section 104(f). If any record date
is set pursuant to this Section 104(e), the Holders of Outstanding Securities of the relevant series on such record date, and no other Holders, shall be entitled to take the relevant action, whether or not such Holders remain Holders
after such record date; provided that no such action shall be effective hereunder unless taken on
-10-
or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this Section 104(e)
shall be construed to prevent the Company from setting a new record date for any action for which a record date has previously been set pursuant to this Section 104(e) (whereupon the record date previously set shall automatically and
with no action by any Person be cancelled and of no effect), and nothing in this Section 104(e) shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the
relevant series on the date such action is taken. Promptly after any record date is set pursuant to this Section 104(e), the Company, at its own expense, shall cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Trustee in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 106. Nothing in this paragraph shall prevent a Holder, or a proxy of a Holder,
from giving, after the Expiration Date, a new notice identical to a notice which has expired, in which event a new record date shall be established.
(f) The Trustee may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to
join in the giving or making of (i) any Notice of Default, (ii) any declaration of acceleration referred to in Section 502, (iii) any request to institute proceedings referred to in Section 507(2) or
(iv) any direction referred to in Section 512, in each case with respect to Securities of such series. If any record date is set pursuant to this Section 104(f), the Holders of Outstanding Securities of such series on
such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder
unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this Section 104(f) shall be construed to prevent the
Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this Section 104(f) (whereupon the record date previously set shall automatically and with no action by any Person be
cancelled and of no effect), and nothing in this Section 104(f) shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such
action is taken. Promptly after any record date is set pursuant to this Section 104(f), the Trustee, at the Company’s expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date
to be given to the Company in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 106. Nothing in this paragraph shall prevent a Holder, or a proxy of a Holder, from giving, after the
Expiration Date, a new notice identical to a notice which has expired, in which event a new record date shall be established.
(g) With
respect to any record date set pursuant to this Section 104, the party hereto which sets such record dates may designate any day as the “Expiration Date” and from time to time may change the Expiration Date to any
earlier or later day; provided that no such change shall be effective unless notice of the proposed new Expiration Date is given to the other party hereto in writing, and to each Holder of Securities of the relevant series in the manner set
forth in Section 106, on or prior to the existing Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant to this Section 104, the party hereto which set such record date shall be
deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this Section 104(g). Notwithstanding the foregoing,
no Expiration Date shall be later than the 180th day after the applicable record date.
-11-
(h) Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with
regard to any particular Security may do so with regard to all or any part of the principal amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such
principal amount.
Section 105. Notices, Etc., to Trustee and 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,
(i) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in writing (which may be by facsimile or other electronic means of transmission) to or with the Trustee at its Corporate Trust Office, Attention: Corporate Trust and Agency
Group, or
(ii) 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 the address of its principal office specified in the first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and given by first-class mail (postage prepaid), by overnight courier or by facsimile or other electronic means of transmission to each Holder affected by such event, at his or her 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, by overnight courier or by facsimile or other
electronic means of transmission, neither the failure to so give such notice, nor any defect in any notice so given, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides
for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
In case
it shall be impracticable to give such notice by mail, by overnight courier or by facsimile or other electronic means of transmission then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification
for every purpose hereunder.
-12-
Notwithstanding anything in this Indenture to the contrary, where this Indenture provides for
notice of any event to a Holder of a Global Security, such notice shall be sufficiently given if given to the Depositary for such Security (or its designee), pursuant to its Applicable Procedures, not later than the latest date (if any), and not
earlier than the earliest date (if any), prescribed for the giving of such notice.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act which is required under the Trust Indenture
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 which may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case may be.
Section 108. Effect of Headings and Table of
Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the
construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their
successors hereunder, the holders of Senior Indebtedness and the Holders, and to the extent set forth in Section 603(j) each Paying Agent, Authenticating Agent and Security Registrar appointed hereunder, any benefit or any legal or equitable
right, remedy or claim under this Indenture, except as may otherwise be provided pursuant to Section 301 with respect to any Securities of a particular series or under this Indenture with respect to such Securities.
Section 112. Governing Law.
This
Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York.
-13-
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security, or any date on which a Holder has the right to
convert his or her Security, shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities (other than a provision of any Security which specifically states that such provision
shall apply in lieu of this Section 113)) payment of interest or principal (and premium, if any), or conversion of such Security, need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day
at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, or on such date for conversion, as the case may be; provided that, except as may otherwise be
provided pursuant to Section 301 with respect to any Securities of a particular series, 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 114. Waiver of Jury Trial.
EACH OF THE COMPANY, THE HOLDERS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 115. Certain Anti-Money Laundering Matters.
In order to comply with laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions relating
to the funding of terrorist activities and money laundering (“Applicable Law”), the Trustee, any Authenticating Agent, any Paying Agent and the Security Registrar may be required to obtain, verify, record and update certain
information relating to individuals and entities which maintain a business relationship with the Trustee, such Authenticating Agent, such Paying Agent or the Security Registrar; accordingly, the Company agrees to provide to the Trustee, any
Authenticating Agent, any Paying Agent and the Security Registrar upon the reasonable request of the Trustee, such Authenticating Agent, such Paying Agent or the Security Registrar from time to time such identifying information and documentation as
may be available to the Company in order to enable the Trustee, such Authenticating Agent, such Paying Agent or the Security Registrar, as applicable, to comply with Applicable Law.
Section 116. Force Majeure.
In no
event shall the Trustee, any Authenticating Agent, any Paying Agent or the Security Registrar 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; and the Trustee, any Authenticating Agent, any Paying Agent and the Security Registrar shall use reasonable efforts which are consistent with accepted practices in the banking
industry to resume performance as soon as possible.
-14-
Section 117. Certain Tax Matters.
In order to facilitate compliance with applicable tax laws (inclusive of rules, regulations and interpretations promulgated by competent
authorities) related to this Indenture in effect from time to time, the Company agrees to provide to the Trustee, any Authenticating Agent, any Paying Agent and the Security Registrar upon the reasonable request of the Trustee, such Authenticating
Agent, such Paying Agent or the Security Registrar from time to time such information about the Company, the Holders or the transactions contemplated by this Indenture as may be available to the Company.
ARTICLE TWO
Security
Forms
Section 201. Forms Generally.
The Securities of each series shall be in substantially the form set forth in this Article Two, or in such other form as shall be
established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or Depositary therefor or as may, consistently herewith, be determined
by the officers executing such Securities, as evidenced by their execution 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 the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 303 for the authentication and delivery of such Securities. If
all of the Securities of any series established by action taken pursuant to a Board Resolution are not to be issued at one time, it shall not be necessary to deliver a record of such action at the time of issuance of each Security of such series,
but an appropriate record of such action shall be delivered at or before the time of issuance of the first Security of such series.
The
definitive Securities shall be printed, or may be produced in any other manner, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities.
Section 202. Form of Face of Security.
THIS NOTE IS NOT A SAVINGS ACCOUNT, DEPOSIT OR OTHER OBLIGATION OF ANY BANK OR NONBANK SUBSIDIARY OF THE COMPANY AND IS NOT INSURED BY THE
FEDERAL DEPOSIT INSURANCE CORPORATION, THE DEPOSIT INSURANCE FUND OR ANY OTHER GOVERNMENTAL AGENCY.
[Insert any legend required by the
Internal Revenue Code and the regulations thereunder]
THE BANK OF NEW YORK MELLON CORPORATION
-15-
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . .
| No. . . . . . . . . . . |
$ . . . . . . . . |
THE BANK OF NEW YORK MELLON CORPORATION, a corporation duly organized and existing under the laws of the State of Delaware (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 Dollars on
[If the Security is to bear interest prior to Maturity, insert — , and to pay interest
thereon from or from the most recent Interest Payment Date to which interest has been paid or duly provided for, 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 (to the extent that the payment of such interest shall be legally enforceable) at the rate of
% per annum on any overdue principal and premium and on any overdue installment of interest]. The
interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in 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 will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered
at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Company, notice whereof shall be given to Holders of Securities of this series and the Trustee not less than 10 days prior to such
Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert —
The principal of this Security shall not bear interest except in the case of a default in payment of principal upon acceleration, upon redemption or at Stated Maturity and in such case the overdue principal of this Security shall bear interest at
the rate of % per annum (to the extent that the payment of such interest shall be legally enforceable), which shall accrue from the date of such default in payment to the date
payment of such principal has been made or duly provided for. Interest on any overdue principal shall be payable on demand. Any such interest on any overdue principal that is not so paid on demand shall bear interest at the rate of
% per annum (to the extent that the payment of such interest shall be legally enforceable), which shall accrue from the date of such 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.]
Payment of the principal of (and
premium, if any, on) and [if applicable, insert — any 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
-16-
of America as at the time of payment is legal tender for payment of public and private debts][if applicable insert description of currency, currencies, composite currency, composite currencies
or currency units in which the principal of or any premium or interest on any Securities of the series shall be payable]; provided, however, that at the option of the Company payment of interest may be made (i) by check mailed
to the address of the Person entitled thereto as such address shall appear in the Security Register or (ii) by wire transfer in immediately available funds at such place and to such account as may be designated by the Person entitled thereto as
specified in the Security Register in writing not less than ten days before the date of the interest payment; and provided, further, that if this Security is a Global Security payment may be made pursuant to the Applicable Procedures
of the Depositary as permitted in said Indenture.
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 an Authenticating Agent, 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 under its corporate seal.
Dated:
|
|
|
| THE BANK OF NEW YORK MELLON CORPORATION |
|
|
| By |
|
|
|
|
Name: Title: |
Attest:
Name:
Title:
Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the Company (herein called the “Securities”), issued and
to be issued in one or more series under an Indenture, dated as of February 9, 2016 (herein called the “Indenture”, which term shall have the meaning assigned to it in such instrument), between the Company and Wilmington Trust,
National Association, as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company, the Trustee, the holders of Senior Indebtedness and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is
one of the series designated on the face hereof [if applicable, insert —, limited in aggregate principal amount to $ ].
-17-
[If applicable, insert — The Securities of this series are subject to redemption upon
not less than 10 days’ nor more than 60 days’ notice, and in the manner provided in the Indenture, [if applicable, insert — (1) at any time on in any
year commencing with the year and ending with the year through operation of the sinking fund for this
series at a Redemption Price equal to 100% of the principal amount, and (2)] at any time [if applicable, insert — on or after ,
20 ], as a whole or in part, at the election of the Company, at the following Redemption Prices (expressed as percentages of the principal amount): If redeemed [on or before
, %, and if redeemed] during the 12-month period beginning
of the years indicated,
|
|
|
|
|
|
|
| Year |
|
Redemption Price |
|
Year |
|
Redemption Price |
and thereafter at a Redemption Price
equal to % of the principal amount, together in the case of any such redemption [if applicable, insert — (whether through operation of the sinking fund or
otherwise)] with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at
the close of business on the relevant Regular Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If
applicable, insert — The Securities of this series are subject to redemption upon not less than 10 days’ nor more than 60 days’ notice in the manner provided in the Indenture, (1) on
in any year commencing with the year and ending with the year
through operation of the sinking fund for this series at the Redemption Prices for redemption through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below, and (2) at any time [if applicable, insert — on or after ], as a whole or in part, at the election of the 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,
|
|
|
|
|
| Year |
|
Redemption Price For
Redemption Through Operation
of the Sinking Fund |
|
Redemption Price For
Redemption Otherwise Than
Through Operation of the
Sinking Fund |
-18-
and thereafter at a Redemption Price equal to
% of the principal amount, together in the case of any such redemption (whether through operation of the sinking fund or otherwise) with accrued interest to the Redemption Date,
but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Regular Record Dates
referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert — Notwithstanding the foregoing,
the Company may not, prior to , redeem any Securities of this series as contemplated by [if applicable, insert — Clause (2) of] the preceding paragraph as a
part of, or in anticipation of, any refunding operation by the application, directly or indirectly, of moneys borrowed having an interest cost to the Company (calculated in accordance with generally accepted financial practice) of less than
% per annum.]
[If applicable, insert –
Notwithstanding the foregoing, the Company may not redeem this Security without having received the prior approval of the “appropriate federal banking agency” with respect to the Company, as defined in Section 3(q) of the Federal
Deposit Insurance Act (12 U.S.C. § 1813(q)), or any successor provision, if then required under capital regulations applicable to the Company.]
[If applicable, insert — The sinking fund for this series provides for the redemption on
in each year beginning with the year and ending with the year
of [if applicable, insert — not less than] $ [if applicable, insert —
(“mandatory sinking fund”) and not more than] $ aggregate principal amount of Securities of this series. [If applicable, insert — Securities of this
series acquired or redeemed by the Company otherwise than through [if applicable, insert — mandatory] sinking fund payments may be credited against subsequent [if applicable, insert — mandatory] sinking fund payments
otherwise required to be made [if applicable, insert — in the inverse order in which they become due].]
[If the Security
is subject to redemption of any kind, insert — In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.]
The indebtedness evidenced by this Security is, to the extent provided in the Indenture,
subordinate and subject in right of payment to the prior payment in full of all Senior Indebtedness, and this Security is issued subject to the provisions of the Indenture with respect thereto. Each Holder of this Security, by accepting the same,
(a) agrees to and shall be bound by the provisions of the Indenture, (b) authorizes and directs the Trustee on his or her behalf to take such actions as may be necessary or appropriate to effectuate the subordination so provided and
(c) appoints the Trustee his or her attorney-in-fact for any and all such purposes. Each Holder hereof, by his or her acceptance hereof, waives all notice of the acceptance of the subordination provisions contained herein and in the Indenture
by each holder of Senior Indebtedness, whether now outstanding or hereafter created, incurred, assumed or guaranteed, and waives reliance by each such holder upon said provisions.
-19-
Payment of principal on the Securities may be accelerated only in the case of certain events
involving the bankruptcy, insolvency or reorganization of the Company. There is no right of acceleration in the case of a default in the performance of any covenant of the Company, including the payment of principal or interest. In case a Default
with respect to this Security shall occur and be continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the holders of the Securities through appropriate judicial proceedings. The Indenture defines
a Default to include, without limitation, default in the payment of principal of these Securities when due and default for 30 days in any payment of interest on any Security of this series.
[If applicable, insert — The Indenture contains provisions for defeasance at any time of [(a)] [the entire indebtedness evidenced
by this Security] [and/or (b)] [certain restrictive covenants and Events of Default with respect to this Security,] [in each case] upon compliance by the Company with certain conditions set forth in the Indenture. At the election of the Company,
these provisions shall apply to this Security.]
[If the Security is not an Original Issue Discount Security, insert — If 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, insert — If 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 to
[insert formula for determining the amount]. Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest on any overdue
principal, premium and interest (in each case to the extent that the payment of such interest shall be legally enforceable), all of the Company’s obligations in respect of the payment of the principal of and premium, if any, on 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 the Holders of
not less than a majority in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of
each series at the time Outstanding to be affected under the Indenture, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
As
provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or this Security or for the appointment of a receiver or trustee or for any
other remedy thereunder,
-20-
unless such Holder shall have previously given the Trustee written notice of a continuing 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 Default as Trustee and offered the Trustee indemnity or security reasonably satisfactory to
the Trustee, 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 or security. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof (and
premium, if any, hereon) or interest hereon on or after the respective due dates expressed herein.
If so provided pursuant to the terms
of any specific Securities, the above-referenced provisions of the Indenture regarding the ability of Holders to waive certain defaults, or to request the Trustee to institute proceedings (or to give the Trustee other directions) in respect thereof,
may be applied differently with regard to such Securities.
No reference herein to the Indenture and no provision of this Security or of
the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of (and premium, if any, on) and interest (if any) on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this
Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of (and premium, if any, on) and interest (if any) on this
Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his or her attorney duly authorized in writing, and
thereupon one or more new Securities of this series and of like tenor, of authorized denominations and far the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in denominations of $1,000 and any integral multiple
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 be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
Under the Indenture, the Company, the Trustee and the holder of this Security waive, to the fullest extent permitted by law, any right to a
trial by jury in any proceeding relating to the Securities.
Except to the extent specified in this Security pursuant to Section
301 of the Indenture, in the event of any inconsistency between the Indenture and this Security, the provisions of the Indenture shall govern.
-21-
All terms used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
Section 204. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the Securities evidenced thereby, every Global Security authenticated
and delivered hereunder shall bear a legend in substantially the following form:
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 EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR
IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
Section 205. Form of Certificate of Authentication.
The certificates of authentication shall be in substantially the following form:
This is one of the Securities of the series designated herein referred to in the within-mentioned Indenture.
|
|
|
| [AUTHENTICATING AGENT] as
Authenticating Agent |
|
|
| By: |
|
|
|
|
Authorized Officer |
ARTICLE THREE
The Securities
Section 301.
Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
-22-
The Securities may be issued in one or more series. There shall be established in or pursuant to
a Board Resolution and, subject to Section 303, set forth, or determined in the manner provided, in an Officers’ Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any
series,
(i) the title of the Securities of the series (which shall distinguish the Securities of the series from
Securities of any other series);
(ii) any limit upon the aggregate principal amount of the Securities of the series which
may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Sections 304,
305, 306, 906 or 1107 and except for any Securities which, pursuant to Section 303, are deemed never to have been authenticated and delivered hereunder);
(iii) the Person to whom any interest on a Security of the series shall be payable, if other than 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;
(iv) the date or dates on which the principal of any Securities of the series is payable;
(v) the rate or rates (or the formula pursuant to which such rate or rates shall be determined) at which any Securities of the
series shall bear interest, if any, including the rate of interest applicable on overdue payments of principal of (and premium, if any on) or interest on, if any, if different from the rate of interest at which the Securities otherwise bear
interest, the date or dates from which any such interest shall accrue, the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date for any such interest payable on any Interest Payment Date;
(vi) the place or places where the principal of (and premium, if any, on) and interest (if any) on any Securities of the series
shall be payable and the manner in which any payment may be made;
(vii) if applicable, the period or periods within which,
the price or prices at which and the terms and conditions upon which any Securities of the series may be redeemed, in whole or in part, at the option of the Company and, if other than by a Board Resolution, the manner in which any election by the
Company to redeem the Securities shall be evidenced;
(viii) the obligation, if any, of the Company to redeem or purchase
any Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which any Securities of the
series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
-23-
(ix) if other than denominations of $1,000 and any integral multiple thereof, the
denominations in which any Securities of the series shall be issuable;
(x) if other than the currency of the United States
of America, the currency, currencies, composite currency, composite currencies or currency units in which the principal of (or premium, if any, on) or interest, if any, on Securities of the series shall be payable and the manner of determining the
equivalent thereof in the currency of the United States of America for any purpose, including for purposes of the definition of “Outstanding” in Section 101;
(xi) if the principal of (or premium, if any, on) or interest, if any, 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, composite currencies or currency units other than that or those in which such Securities are stated to be payable, the currency, currencies, composite currency, composite
currencies or currency units in which the principal of (or premium, if any, on) or interest, if any, on such Securities as to which such election is made shall be payable, the periods within which and the terms and conditions upon which such
election is to be made and the amount so payable (or the manner in which such amount shall be determined);
(xii) if the
amount of payments of principal of (or premium, if any, on) or interest, if any, on any Securities of the series may be determined with reference to an index, the manner in which such amounts shall be determined;
(xiii) if other than the entire principal amount thereof, the portion of the principal amount of any Securities of the series
which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502;
(xiv)
if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one or more dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities
as of any such date for any purpose thereunder or hereunder, including the principal amount thereof which shall be due and payable upon any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to
the Stated Maturity (or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined);
(xv) any addition to, elimination of or other change in the Defaults or Events of Default which applies to any Securities of
the series and any change in the acceleration provisions in Section 502;
(xvi) if applicable, that the Securities
of the series, in whole or any specified part, shall be defeasible pursuant to Section 1402 or 1403 or both such Sections, any provisions to permit a pledge of obligations other than U.S. Government Obligations (or the
establishment of other arrangements) to satisfy the requirements of Section 1404(1) for defeasance of such Securities; and, if other than by a Board Resolution, the manner in which any election by the Company to defease such Securities
shall be evidenced;
-24-
(xvii) if applicable, that any Securities of the series shall be issuable in
whole or in part in the form of one or more Global Securities and, in such case, the respective Depositaries for such Global Securities, the form of any legend or legends which shall be borne by any such Global Security in addition to or in lieu of
that set forth in Section 204 and any addition to, elimination of or other change in the circumstances set forth in Clause (2) of the last paragraph of Section 305 in which any such Global Security may be exchanged in
whole or in part for Securities registered, and any transfer of such Global Security in whole or in part may be registered, in the name or names of Persons other than the Depositary for such Global Security or a nominee thereof and any other
provisions governing exchanges or transfers of any such Global Security;
(xviii) any addition to, elimination of or other
change in the covenants set forth in Article Ten which applies to Securities of the series;
(xix) any provisions
necessary to permit or facilitate the issuance, payment or conversion of any Securities of the series that may be converted into securities or other property other than Securities of the same series and of like tenor, whether in addition to, or in
lieu of, any payment of principal or other amount and whether at the option of the Company or otherwise;
(xx) any change
in the actions permitted or required under this Indenture to be taken by or on behalf of the Holders of the Securities of the series, including any such change that permits or requires any or all such actions to be taken by or on behalf of the
Holders of any specific Securities of the series rather than or in addition to the Holders of all Securities of the series;
(xxi) if applicable, the remarketing or extension features of the Securities of the series;
(xxii) any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture, except as
permitted by Section 901(7)); and
(xxiii) if, applicable, that Persons other than those specified in
Section 111 shall have such benefits, rights, remedies and claims with respect to any Securities of the series or under this Indenture with respect to such Securities, as to the extent provided for such Securities.
All Securities of any one series shall be substantially identical except as to authorized denominations and except as may otherwise be
provided in or pursuant to the Board Resolution referred to above and (subject to Section 303) set forth, or determined in the manner provided, in the Officers’ Certificate referred to above or in any such indenture supplemental
hereto. All Securities of any one series need not be issued at one time and, unless otherwise provided, a series, or any issue of Securities of any one series, may be reopened for issuances of additional Securities of such series, or of such issue
of Securities, as the case may be.
-25-
Accordingly, the terms of any Security of a series may differ from the terms of other Securities
of the same series, if and to the extent provided pursuant to this Section 301. The matters referenced in any or all of Clauses (i) through (xxii) above may be established and set forth or determined as aforesaid with respect
to all or any specific Securities of a series (in each case to the extent permitted by the Trust Indenture Act).
If any of the terms of
the series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Officers’ Certificate setting forth the terms of the Securities of such series. If all of the Securities of any series established by action taken pursuant to a Board Resolution are not to be issued at one time, it shall not be
necessary to deliver a record of such action at the time of issuance of each Security of such series, but an appropriate record of such action shall be delivered at or before the time of issuance of the first Security of such series.
The Securities shall be subordinated in right of payment to Senior Indebtedness and shall not be superior in right of payment to, and shall
rank pari passu with, the Existing Senior Subordinated Indebtedness, in each case, as provided in Article Thirteen. The Securities shall be superior in right of payment to the Existing Junior Subordinated Indebtedness.
Section 302. Denominations.
The
Securities of each series shall be issuable only in registered form without coupons and only in such denominations as shall be specified as contemplated by Section 301. In the absence of any such provisions with respect to the Securities
of any series, the Securities of such series shall be issuable in denominations of $1,000 and any integral multiple thereof.
Section 303.
Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman of the
Board of Directors, its Chief Executive Officer, its President, its Controller, its General Counsel, a Vice Chairman, a Vice President, or its Treasurer and attested by its Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who were at
any time the proper officers of the 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 Authenticating Agent for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Authenticating Agent in accordance with the Company Order
shall authenticate and deliver such Securities. If all of the Securities of any series are not to be issued at one time and if the Board Resolution, Officers’ Certificate or supplemental indenture establishing such series shall so permit, such
Company Order may set forth procedures acceptable to the Authenticating Agent for the issuance of such Securities and determining the
-26-
terms of particular Securities of such series, including, without limitation, but subject to such Board Resolution, Officers’ Certificate or supplemental indenture, as the case maybe, the
interest rate, maturity date, date of issuance and date from which interest shall accrue; provided that the Company shall not issue any such Securities pursuant to such procedures with terms set forth in such Security that would adversely
impact the rights, duties or immunities of the Trustee under this Indenture or such Securities without the Trustee’s prior written consent; provided, further, that, upon the reasonable request of the Company, the Trustee shall
promptly inform the Company whether the Trustee believes that a Security issued pursuant to such procedures contains terms to which the Trustee must consent in writing in accordance with the preceding proviso. If the form or terms of the Securities
of the series have been established by or pursuant to one or more Board Resolutions as permitted by Sections 201 and 301, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in
relation to such Securities, the Authenticating Agent shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or pursuant to a Board Resolution as permitted by Section 201, that such
form has been established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established
by or pursuant to Board Resolution as permitted by Section 301, that such terms have been established in conformity with the provisions of this Indenture; and
(c) that such Securities, when authenticated and delivered by the Authenticating Agent 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, and entitled to the benefits of this Indenture, 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, if applicable, to provisions of law which may require that a judgment for
money damages rendered by a court in the United States be expressed in United States dollars.
If such form or terms have been so established, the
Authenticating Agent shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s or the Authenticating Agent’s own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Authenticating Agent.
Notwithstanding
the provisions of Section 301 and of the preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officers’ Certificate otherwise required pursuant to
Section 301 or the Company Order and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the authentication of each Security of such series if such documents are delivered at or prior to the
authentication upon original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its
authentication.
-27-
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 Authenticating Agent by manual signature, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder 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 Authenticating Agent for cancellation as provided in Section 309 together with a written statement (which need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel) stating that such Security has never been issued and sold by the Company, for all purposes of this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this Indenture.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Authenticating Agent shall
authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, reproduced or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued
and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the 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 in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series the Company shall execute, and the Authenticating Agent
shall authenticate and deliver, in exchange therefor one or more definitive Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount. Until so exchanged, the temporary Securities of any series
shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series and tenor.
Section 305.
Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the corporate trust office of the
Security Registrar designated pursuant to this Section 305 a register (the register maintained in such office and in any other office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the
“Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and of transfers of Securities. The Bank is hereby initially appointed
“Security Registrar” for the purpose of registering Securities and transfers of Securities as herein provided. For the avoidance of doubt, at any time after the date of this Indenture, the Company may appoint the Trustee or any
other Person (other than the Company) as Security Registrar by providing advance written notice of such appointment to the Trustee.
-28-
Any corporation into which a Security Registrar 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 Security Registrar shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of such Security
Registrar, shall continue to be Security Registrar, without the execution or filing of any paper or any further act on the part of the Company, the Trustee or such Security Registrar.
A Security Registrar may resign at any time by giving written notice thereof to the Trustee and to the Company. The Company may at any time
terminate the agency of a Security Registrar by giving written notice thereof to such Security Registrar and to the Trustee. Upon receiving such a notice of resignation or upon such a termination, the Company may appoint a successor Security
Registrar. Any successor Security Registrar upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as Security Registrar.
Upon surrender for registration of transfer of any Security of any series at the office or agency of the Company in a Place of Payment for
that series, the Company shall execute, and the Authenticating Agent shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series, of any authorized denominations and of like
tenor and aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged for other Securities of the
same series, of any authorized denominations and of like tenor and aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Authenticating Agent 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 Security
Registrar) 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 or her 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 Sections 304, 906 or 1107 not
involving any transfer.
-29-
The Security Registrar shall, upon written request thereof by the Trustee or the Company, provide
the Trustee or the Company, respectively, with a copy of the Security Register.
If the Securities of any series (or of any series and
specified tenor) are to be redeemed in part, the Company shall not be required (A) to issue, register the transfer of or exchange any Securities of that series (or of that series and specified tenor, as the case may be) during a period
beginning at the opening of business 15 days prior to the day of the transmission of a notice of redemption of any such Securities selected for redemption under Section 1103 and ending at the close of business on the day of such
transmission (or during such period as otherwise specified pursuant to Section 301 for such Securities), or (B) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3), (4) and (5) below shall
apply only to Global Securities:
(1) Each Global Security authenticated under this Indenture shall be registered in the
name of the Depositary designated for such Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this
Indenture.
(2) Notwithstanding any other provision in this Indenture, and subject to such applicable provisions, if any,
as may be specified as contemplated by Section 301, no Global Security may be exchanged in whole or in part for Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person
other than the Depositary for such Global Security or a nominee thereof unless (A) such Depositary has notified the Company that it (i) is unwilling or unable to continue as Depositary for such Global Security or (ii) has ceased to be
a clearing agency registered under the Exchange Act, (B) there shall have occurred and be continuing an Event of Default with respect to such Global Security, (C) the Company executes and delivers to the Trustee and Security Registrar a
Company Order stating that such Global Security shall be so transferable and exchangeable or (D) there shall exist such circumstances, if any, in addition to or in lieu of the foregoing as have been specified for this purpose as contemplated by
Section 301. If the Company receives a notice of the kind specified in Clause (A) above or delivers the Company Order referenced in Clause (C) above, it may, in its sole discretion, designate a successor Depositary for such
Global Security within 60 days after receiving such notice or delivering such Company Order, as the case may be. If the Company designates a successor Depositary as set forth above, such Global Security shall promptly be exchanged in whole for
one or more other Global Securities registered in the name of the successor Depositary, whereupon such designated successor shall be the Depositary for such successor Global Security or Global Securities and the provisions of Clauses (1), (2),
(3) (4) and (5) of this Section 305 shall continue to apply thereto.
-30-
(3) Subject to Clause (2) above and to such applicable provisions, if any,
as may be specified as contemplated by Section 301, any exchange of a Global Security for other Securities may be made in whole or in part, and all Securities issued in exchange for a Global Security or any portion thereof shall be
registered in such names as the Depositary for such Global Security shall direct.
(4) Every Security authenticated and
delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this Section 305, Section 304, 306, 906 or 1107 or otherwise,
shall be authenticated and delivered in the form of, and shall be, a Global Security, unless such Security is registered in the name of a Person other than the Depositary for such Global Security or a nominee thereof.
(5) Neither any members of, or participants in, a Depositary, nor any other Persons on whose behalf such members or
participants may act, shall have any rights under this Indenture with respect to any Global Security registered in the name of a Depositary or any nominee thereof, and the applicable Depositary or such nominee, as the case may be, may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner and Holder of such Global Security for all purposes whatsoever. None of the Company, the Trustee, any Paying Agent, any Security Registrar, any Authenticating
Agent or any other agent of the Company or any agent of the Trustee shall have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Security in the form of a
Global Security, or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests. The Company, the Trustee, any Paying Agent, any Security Registrar, any Authenticating Agent, and any other agent of the
Company and any agent of the Trustee shall be entitled to deal with a Depositary, and any nominee thereof, that is the Holder of a Global Security for all purposes of this Indenture relating to such Global Security (including the payment of
principal, premium, if any, and interest, if any, and the giving of instructions or directions by or to the owner or holder of a beneficial ownership interest in such Global Security) as the sole Holder of such Global Security and shall have no
obligations to the beneficial owners thereof. None of the Company, the Trustee, any Paying Agent, any Security Registrar or any other agent of the Company or any agent of the Trustee shall have any responsibility or liability for any acts or
omissions of a Depositary with respect to a Global Security, for the records of any such Depositary, including records in respect of beneficial ownership interests in respect of any such Global Security, for any transactions between such Depositary
and any members or participants in such Depositary or other participant in such Depositary or between or among any such Depositary, any such member or participant in such Depositary or other participant and/or any holder or owner of a beneficial
interest in such Global Security or for any transfers of beneficial interests in any such Global Security.
Section 306. Mutilated, Destroyed,
Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Authenticating
Agent 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.
-31-
If there shall be delivered to the Company and the Security Registrar (i) evidence to their
satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the
Security Registrar that such Security has been acquired by a bona fide purchaser, the Company shall execute and the Authenticating Agent shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the
same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated,
destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its absolute discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section 306, 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 306 in lieu of any destroyed, lost or stolen Security shall
constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued hereunder.
The provisions of this Section 306
are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with respect to any Securities of a series, interest on any Security
which is payable, and is punctually paid or made available for payment, 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 made
available for payment, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided in Clause (1) or (2) below:
(1)
The Company may elect to make payment of any Defaulted Interest payable on any Securities of a series to the Person or Persons in whose names such Securities (or their respective Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each of such Securities and
-32-
the date of the proposed payment, and at the same time the Company shall deposit with the Paying Agent (other than the Company) 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 Paying Agent (other than the Company) 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 cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor
to be given to each Holder of such Securities and the Trustee in the manner set forth in Section 106, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so given, such Defaulted Interest shall be paid to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall
no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on
any Securities of a series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this Clause (2), such manner of payment shall be deemed practicable by the Paying Agent.
Except as may otherwise be provided in this Section 307 or as contemplated in Section 301 (A) with respect to any
Securities of a series, the Person to whom interest shall be payable on any Security that first becomes payable on a day that is not an Interest Payment Date shall be the Holder of such Security on the day such interest is paid and
(B) installments of interest whose Stated Maturity is on the Redemption Date will be payable to the Holders of such Securities to whom the principal shall be payable.
Subject to the foregoing provisions of this Section 307, 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.
In the case of any Security which is converted after any Regular Record Date and on or prior to the next succeeding Interest Payment Date
(other than any Security whose Maturity is prior to such Interest Payment Date), interest whose Stated Maturity is on such Interest Payment Date shall be payable on such Interest Payment Date notwithstanding such conversion, and such interest
(whether or not punctually paid or made available for payment) 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 such Regular Record Date. Except as otherwise
expressly provided in the immediately preceding sentence, in the case of any Security which is converted, interest whose Stated Maturity is after the date of conversion of such Security shall not be payable. Notwithstanding the foregoing, the terms
of any Security that may be converted may provide that the provisions of this paragraph do not apply, or apply with such additions, changes or omissions as may be provided thereby, to such Security.
-33-
Section 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of (and premium, if any, on), and (subject to Section 307) interest, if any, on such Security and
for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global Security, nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy or other authorization furnished by a Depositary or impair, as between a Depositary and holders of beneficial interests in any Global Security, the operation of customary
practices and adherence to the Applicable Procedures governing the exercise of the rights of the Depositary as Holder of such Global Security.
Section 309. Cancellation.
All
Securities surrendered for payment, redemption, registration of transfer or exchange or conversion or for credit against any sinking fund payment shall, if surrendered to any Person other than the Security Registrar, be delivered to the Security
Registrar and shall be promptly cancelled by it. The Company may at any time deliver to the Security Registrar for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Security Registrar (or to any other Person for delivery to the Security Registrar) for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Security Registrar. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section 309, except as expressly permitted by this
Indenture. Upon the receipt of a Company Request stating that all cancelled Securities shall be destroyed, all cancelled Securities held by the Security Registrar shall be disposed of by the Security Registrar in accordance with its procedures for
the disposition of cancelled securities, and a certificate of disposition shall be delivered to the Company upon written request therefrom, unless, by a Company Order, the Company directs the return of such cancelled Securities to it.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities of any series, interest on the Securities of each
series shall be computed on the basis of a 360-day year of twelve 30-day months.
-34-
Section 311. CUSIP Numbers.
The Company in issuing the Securities may use CUSIP numbers (if then generally in use) and, if so, CUSIP numbers shall be used in notices of
redemption as a convenience to Holders, provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of redemption and that
reliance may be placed only on the other identification numbers printed on the Securities. Any such redemption shall not be affected by any defect in or omission of such numbers.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect (except as to any surviving rights of conversion, registration of
transfer or exchange of any Security expressly provided for herein or in the terms of such Security), and the Trustee, upon Company Request and at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge
of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 306 and (ii) Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 1003) have been delivered to the Security Registrar for cancellation; or
(B) all such Securities not theretofore delivered to the Security Registrar for cancellation
(i) have become due and payable, or
(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 deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose money in an amount sufficient to pay and discharge the entire indebtedness on such Securities
-35-
not theretofore delivered to the Security Registrar for cancellation, for principal (and premium, if any) and interest, if any, to the date of such deposit (in the case of Securities which have
become due and payable) or to the 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; 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 have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 607,
the obligations of the Company to any Authenticating Agent under Section 614 and, if money or U.S. Government Obligations shall have been deposited with the Trustee (or another trustee satisfying the conditions of
Section 609) in accordance with Section 1402, the obligations of the Company under the fourth paragraph of Section 1405, and, if money shall have been deposited with the Trustee pursuant to subclause (B) of
Clause (1) of this Section 401, the obligations of the Trustee under Section 402 and the fifth paragraph of Section 1003 shall survive such satisfaction and discharge.
Section 402. Application of Trust Money.
Subject to the provisions of the fifth paragraph of Section 1003, all money deposited with the Trustee pursuant to
Section 401 shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest, if any, for whose payment such money has been deposited with the Trustee, but such money need not be segregated from other
funds except as required by law. All money deposited with the Trustee pursuant to Section 401 (and held by it or any Paying Agent) for the payment of Securities subsequently converted into other property shall be returned to the Company
upon Company Request.
ARTICLE FIVE
Remedies
Section 501. Events of
Default.
Except as may otherwise be provided pursuant to Section 301 for all or any specific Securities of any series,
“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):
-36-
(1) the entry by a court having jurisdiction in the premises of (A) a decree
or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or
any such other decree or order unstayed and in effect for a period of 60 consecutive days; or
(2) the commencement by the
Company of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or the consent by it to the filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of any such action; or
(3) any other Event of Default provided with respect to Securities of that series.
The Company shall deliver to the Trustee, as soon as possible and in any event within five days after any of the Chairman of the Board of
Directors, the Chief Executive Officer, a Vice Chairman, the President, the Chief Financial Officer, General Counsel or the Treasurer of the Company becomes aware of the occurrence of any Event of Default, a written notice setting forth the details
of such Event of Default and the action which the Company proposes to take with respect thereto signed in the name of the Company by the Chairman of the Board of Directors, the Chief Executive Officer, a Vice Chairman, the President, the Chief
Financial Officer, any Vice President, the Treasurer, a Deputy Treasurer, the General Counsel or any Assistant Treasurer of the Company, or a person authorized by such person or by a Board Resolution.
Section 502. Acceleration of Maturity; Rescission and Annulment.
Except as may otherwise be provided pursuant to Section 301 for all or any specific Securities of any series, if an Event of
Default with respect to the Securities of any series at the time Outstanding occurs, the principal amount of all the Securities of that series (or, in the case of any Security of that series which specifies an amount to be due and payable thereon
upon acceleration of the Maturity thereof, such amount as may be specified by the terms thereof) shall automatically, and without any declaration or other action on the part of the Trustee or any Holder, become immediately due and payable. For the
avoidance of doubt, upon payment of such amount, all obligations of the Company in respect of the payment of principal of (and premium, if any, on) and interest (if any) on the Securities of such series shall terminate.
Except as may otherwise be provided pursuant to Section 301 for all or any specific Securities of any series, 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 Five provided, the
-37-
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, and any Event of Default giving rise to such declaration shall not be deemed to have occurred, 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 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 reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series have been cured or waived as provided in
Section 513 or otherwise remedied.
For the avoidance of doubt, the maturity of the Securities may be accelerated only upon the occurrence of
an Event of Default and in accordance with this Section 502, and may not be accelerated for any other reason.
No such rescission shall affect
any subsequent default or impair any right consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The 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,
(2) default is made in the payment of the principal of (and premium, if any, on) any
Security at the Maturity thereof, or
(3) default is made in the making or satisfaction of any sinking fund payment or
analogous obligation when the same becomes due pursuant to the terms of any Security;
-38-
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the
whole amount then due and payable on such Securities for principal, including any sinking fund payment or analogous obligation, (and any premium, if any) and interest, if any and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal (and premium, if any) and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If the 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.
Except as may otherwise be provided pursuant to Section 301 for all or any specific Securities of any series,
“Default”, wherever used herein with respect to Securities of any series, means any one of the following events (whatever the reason for such Default and whether it shall be occasioned by the provisions of Article Fourteen or be
voluntary or involuntary or effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(a) an Event of Default with respect to any Securities of that series specified in Section 501; or
(b) the events referred to in Subsections 503(1) through 503(3) above with respect to any Securities of that
Series; or
(c) default in the performance, or breach, of any covenant or warranty of the Company in this Indenture or any
Security of that series (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section 503 specifically dealt with or which has expressly been included in this Indenture solely for the
benefit of Securities other than Securities of such series; it being understood that to the extent a covenant or warranty is applicable solely to Securities other than Securities of such series, a default in the performance, or
breach, of any such covenant or warranty shall not result in a Default with respect to Securities of such 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 the Holders of at least 25% in principal amount of the Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating
that such notice is a “Notice of Default” hereunder; or
(d) any other Default provided with respect to
Securities of that series.
The Company shall deliver to the Trustee, as soon as possible and in any event within five days after any of
the Chairman of the Board of Directors, the Chief Executive Officer, a Vice Chairman, the President, the Chief Financial Officer, General Counsel or the Treasurer of the
-39-
Company becomes aware of the occurrence of any Default, a written notice setting forth the details of such Default and the action which the Company proposes to take with respect thereto signed in
the name of the Company by the Chairman of the Board of Directors, the Chief Executive Officer, a Vice Chairman, the President, the Chief Financial Officer, any Vice President, the Treasurer, a Deputy Treasurer, the General Counsel or any Assistant
Treasurer of the Company, or a person authorized by such person or by a Board Resolution.
If a Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due
and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in
such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized (i) to file
and prove a claim for the whole amount of principal (and premium, if any) and interest, if any, owing and unpaid in respect of the Securities of all series and to file such other papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and (ii) to collect and receive
any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’ or other similar committee.
-40-
Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of
any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article Five shall be applied in the following order, at the date or dates fixed by
the Trustee and, in case of the distribution of such money on account of principal (or premium, if any) or interest, if any, 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 607;
SECOND: Subject to Article Thirteen, to the payment of the amounts then due and unpaid for principal of (and premium, if
any, on) and interest, if any, 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 premium, if any) and interest, if any, respectively; and
THIRD: To the payment of the remainder, if any, to
the Company or to any other Person who may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct.
Section 507.
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 the Securities, 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 Default with respect to the Securities of
that series;
(2) the Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall
have made written request to the Trustee to institute proceedings in respect of such Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee security or indemnity reasonably satisfactory to the Trustee against the
costs, expenses and liabilities to be incurred in compliance with such request;
-41-
(4) the Trustee for 60 days after its receipt of such notice, request and offer
of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders.
Section 508. Unconditional Right of
Holders to Receive Principal, Premium and Interest and to Convert.
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 premium, if any, on) and (subject to Section 307) interest, if any, on such Security on the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and, if the terms of such Security so provide, to convert such Security in accordance with its terms, and to institute suit for the enforcement of any such
payment, and, if applicable, any such right to convert, and such rights shall not be impaired without the consent of such Holder.
Section 509.
Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the
Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law,
be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
-42-
Section 511. 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 Default shall impair
any such right or remedy or constitute a waiver of any such Default or an acquiescence therein. Every right and remedy given by this Article Five or by law to the Trustee or to the Holders may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any, on) or interest, if any, on any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default or Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
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 reasonable costs, including reasonable attorneys’ fees, against any such party litigant, in
the manner and to the extent provided in the Trust Indenture Act; provided that neither this Section 514 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 Company or if applicable, in any suit for the enforcement of the right to convert any Security in accordance with its terms.
-43-
Section 515. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that
it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
Section 601. Certain
Duties and Responsibilities.
(a) Except during the continuance of a Default,
(1) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad
faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to
the requirements of this Indenture.
(b) In case a Default has occurred and is continuing, the Trustee shall exercise such of the rights
and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man or woman would exercise or use under the circumstances in the conduct of his or her own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own wilful misconduct, except that
(1) this Subsection 601(c) shall not be construed
to limit the effect of Subsection (a) of this Section 601;
-44-
(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 of a majority in principal amount of the Outstanding Securities of any series, determined as provided in Section 512, relating to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such series; and
(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 it shall have reasonable grounds for believing that repayment of such funds or adequate security or 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 601.
Section 602. Notice of Defaults.
Within 90 days after receipt by a Responsible Officer of the Trustee of written notice of the occurrence of any Default hereunder with respect
to Securities of any series, the Trustee shall deliver the Holders of Securities of such series, as their names and addresses appear in the Security Register, notice of such Default hereunder, unless such Default shall have been cured or waived;
provided, however, that, except in the case of a Default in the payment of the principal of (or premium, if any, on) or interest on any Security of such series or in the payment of any sinking fund installment with respect to
Securities of such series, the Trustee shall be protected in withholding such notice if and so long as Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the interest of the Holders of Securities of
such series.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a
Company Request or Company Order and any resolution of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
-45-
(c) whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an
Officers’ Certificate;
(d) 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;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(h) the Trustee shall not be liable for any action taken, suffered or omitted to be taken by it in good faith and
reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(i) the Trustee shall not be deemed to have knowledge of any default, Event of Default or Default unless a Responsible Officer
of the Trustee shall have (x) received written notice of such event, referencing the Securities and this Indenture, at the Corporate Trust Office of the Trustee or (y) obtained actual knowledge of such event;
(j) the rights, privileges, protections, immunities and benefits given to the Trustee, including its rights to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder and by each Paying Agent, Authenticating Agent and Security Registrar appointed hereunder;
(k) the Trustee may, from time to time, request that the Company deliver a certificate (upon which the Trustee may conclusively
rely) setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture together with a specimen signature of such authorized officers;
-46-
provided, however, that from time to time, the Company may, by delivering to the Trustee a revised certificate, change the information previously provided by it pursuant to this
Section 603(k), but the Trustee shall be entitled to conclusively rely on the then-current certificate until receipt of a superseding certificate;
(l) the right of the Trustee to perform any discretionary act enumerated in this Indenture shall not be construed as a duty;
and
(m) the Trustee shall not be responsible or liable for punitive, special, indirect, or consequential loss or damage of
any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of actions.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements
of the Company, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or application by the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company.
Section 607. Compensation and
Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or willful misconduct;
-47-
(3) to indemnify each of the Trustee and any successor or predecessor Trustee
hereunder and their agents for, and to hold it harmless against, any and all loss, liability, damage, claim, judgment or expense (including reasonable attorneys’ fees and expenses and including tax (other than tax imposed on the income of the
Trustee), incurred without its own negligence or willful misconduct, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder and the performance of its duties (including in any agent capacity in which
it acts), as well as the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder;
(4) to grant the Trustee a security interest in any funds or property of the Company held by the Trustee under this Indenture
to secure the Company’s performance of obligations under this Section 607 except for funds held in trust for payment of principal or interest on any Securities; and
(5) that the provisions of this Section 607 shall survive the satisfaction and discharge of this Indenture,
defeasance pursuant to Article Fourteen of this Indenture and any resignation or removal of any Trustee.
Section 608. 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 conflicting interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by the Trust Indenture Act, the
Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture with respect to Securities of more than one series, or a trustee under any other indenture or indentures under which other securities, or
certificates of interest or participation in other securities, of the Company are outstanding if the requirements set forth in the Trust Indenture Act are met.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with respect to the Securities of each series, which may be Trustee hereunder
for Securities of one or more other series. Each Trustee shall be a corporation that is eligible pursuant to the Trust Indenture Act to act as such, has a combined capital and surplus of at least $50,000,000 and has its Corporate Trust Office in the
United States. If any such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section 609 and to the extent
permitted by the Trust Indenture Act, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee with
respect to the Securities of any series shall cease to be eligible in accordance with the provisions of this Section 609, it shall resign immediately in the manner and with the effect hereinafter specified in this Article Six.
-48-
Section 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article Six shall become
effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 611.
(b) 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 611 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(c) 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.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 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 609 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, (i) the Company by a Board Resolution may remove the Trustee with respect to all Securities, or (ii) subject to
Section 514, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor Trustee or Trustees.
(e) 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 611. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered
-49-
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 611, 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 the Holders and accepted appointment in the manner required by Section 611, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(f) 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 106. Each notice shall include the name of the successor Trustee with respect
to the Securities of such series and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
(a) 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,
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, subject to such retiring Trustee’s security interest under Section 607.
(b) In case of the appointment
hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by
more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture
-50-
the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee,
such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor
Trustee relates, subject to such retiring Trustee’s security interest under Section 607.
(c) 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 (a) and (b) of this
Section 611, as the case may be.
(d) 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 Six.
Section 612. Merger, Conversion, Consolidation or
Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and eligible under this Article Six, without the execution or filing of any paper or any further act on the part of any of the parties hereto.
Section 613. Preferential Collection of Claims Against 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 614.
Appointment of Authenticating Agent.
The Trustee shall appoint an Authenticating Agent or Agents with respect to each series of
Securities which shall be authorized to, and shall, authenticate Securities of such series issued upon original issue and upon exchange, registration of transfer or partial redemption thereof or partial conversion thereof, or pursuant to
Section 306, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes; provided that there shall at all times be at least one Authenticating Agent with
respect to each series of Securities; provided, further, that if, at any time, no Person (other than the Trustee) has been appointed as Authenticating Agent with respect to any series of Securities, the
-51-
Trustee shall appoint itself to act, and shall act, as Authenticating Agent for such series. Wherever reference is made in this Indenture to the authentication and delivery of Securities or the
certificate of authentication, such reference shall refer to authentication and delivery by the Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision
or examination by Federal or State authority. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this
Section 614, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent
(other than the Trustee) shall cease to be eligible in accordance with the provisions of this Section 614, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section 614. If
at any time the Trustee has been appointed as Authenticating Agent hereunder and shall cease to be eligible in accordance with the provisions of this Section 614, the provisions with respect to the resignation and removal of the Trustee,
and the appointment of a successor, in Section 610 and Section 611 shall apply.
Any corporation into which an
Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of such Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section 614, without the execution or filing of any
paper or any further act on the part of the Trustee or such Authenticating Agent. In case any Securities shall have been authenticated, but not delivered, by the Authenticating Agent then appointed, any successor by merger, conversion or
consolidation to such Authenticating Agent may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Authenticating Agent had itself authenticated such Securities.
An Authenticating Agent (other than the Trustee, if it has been appointed as 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 (other than the Trustee, if it has been appointed as an Authenticating Agent) by giving written notice thereof to such
Authenticating Agent and to the Company; provided that if the Trustee is the sole appointed Authenticating Agent with respect to any series of Securities, the Trustee may terminate its agency as Authenticating Agent with respect to such
series of Securities only if a successor Authenticating Agent has been appointed and accepted such appointment. 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 614, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give notice of such appointment in the manner provided in
Section 106 to all Holders of Securities of the series with respect to which such Authenticating Agent will serve. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No such successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section 614.
-52-
The Company agrees to pay to each Authenticating Agent from time to time such compensation for
its services under this Section 614 as the Company and each Authenticating Agent shall from time to time agree in writing.
The Trustee is hereby directed to appoint the Bank as, and the Bank is hereby initially appointed Authenticating Agent for the purpose of
authenticating the Securities as herein provided, and the Trustee shall incur no liability for such appointment or for any misconduct or negligence of such Authenticating Agent, including without limitation, its authentication of the Securities upon
original issuance or pursuant to Section 306. Without limiting the foregoing, in the event the Trustee does incur liability for any such misconduct or negligence of such Authenticating Agent or any successor (other than the Trustee)
appointed pursuant to this Section 614, the Company agrees to indemnify the Trustee for, and hold it harmless against, any such liability, including the costs and expenses of defending itself against any liability in connection with such
misconduct or negligence of such Authenticating Agent.
Following the appointment of an Authenticating Agent with respect to one or more
series pursuant to this Section 614, the Securities of such series shall have endorsed thereon a certificate of authentication in the form set forth in Section 205.
ARTICLE SEVEN
Holders’ Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than January 15 and July 15 in each year, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of Securities of each series as of the preceding January 1 and July 1, as the case may be and
(b) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished;
excluding
from any such list names and addresses received by the Security Registrar (if the Trustee is acting as Security Registrar).
Section 702.
Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent list furnished by or on behalf of the Company to the Trustee as provided in Section 701, and, if and only if the Trustee is acting as Security Registrar, the
names and addresses of Holders received by the Trustee in such capacity. The Trustee may destroy any list furnished to it as provided in Section 701 upon receipt of a new list so furnished.
-53-
The rights of Holders to communicate with other Holders with respect to their rights under this
Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with the 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 names and addresses of Holders made pursuant to the Trust Indenture Act.
Section 703. Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to
Section 313 of the Trust Indenture Act at the times and in the manner provided pursuant thereto.
Reports so required to be
transmitted at stated intervals of not more than 12 months shall be transmitted no later than the anniversary of the original issuance of such series of Securities.
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 when any Securities are listed on any stock exchange.
Section 704. Reports by Company.
The Company shall file with the Trustee and the Commission, 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 any such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act need not be filed with the Trustee until the 15th day after the same are actually filed with the Commission.
Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such
shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Officers’ Certificates).
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. 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, and the Company shall not permit any Person to consolidate with or merge into the Company, unless:
-54-
(1) in case the Company shall consolidate with or merge into another Person or
convey, transfer or lease its properties and assets substantially as an entirety to any Person, 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 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, in form satisfactory to the Trustee, the due and punctual payment of the principal of (and premium, if any, on) and interest, if any, on all the Securities
and the performance or observance of every covenant of this Indenture on the part of the Company to be performed or observed and, for each Security that by its terms provides for conversion, shall have provided for the right to convert such Security
in accordance with its terms;
(2) immediately after giving effect to such transaction, no Default, and no event which,
after notice or lapse of time or both, would become a Default, shall have happened and be continuing; and
(3) 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, if a supplemental indenture is required in connection with such transaction, such
supplemental indenture comply with this Article Eight and that all conditions precedent herein provided for relating to such transaction have been complied with.
Section 802. 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 801, 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.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.
Except as may otherwise be provided pursuant to Section 301 for all or any specific Securities of any series, without the consent
of any Holders, the Company, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following
purposes:
-55-
(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein and in the Securities; or
(2) to add to the
covenants of the Company for the benefit of the Holders of all or any Securities of any series (and if such covenants are to be for the benefit of less than all Securities of any series, stating that such covenants are expressly being included
solely for the benefit of such Securities within such series); or
(3) to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee, or to secure the Securities of any series, or to provide for guarantees of the Securities of any series; or
(4) to surrender any right or power herein conferred upon the Company with regard to all or any Securities of any series (and
if any such surrender is to be made with regard to less than all Securities of any series, stating that such surrender is expressly being made solely with regard to such Securities within such series); or
(5) to add any additional Defaults or Events of Default for the benefit of the Holders of all or any Securities of any series
(and if such additional Defaults or Events of Default are to be for the benefit of less than all Securities of any series, stating that such additional Defaults or Events of Default are expressly being included solely for the benefit of such
Securities within such series); or
(6) to add to or change any of the provisions of this Indenture to such extent as shall
be necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate the issuance of Securities in uncertificated form; or
(7) to add to, change or eliminate any of the provisions of this Indenture (including, without limitation, the covenants
and Defaults set forth herein) in respect of all or any Securities of any series (and if such addition, change or elimination is to apply with respect to less than all Securities of any series, stating that it is expressly being made to apply solely
with respect to such Securities within such series); provided that any such addition, change or elimination (A) shall neither (i) apply to any Security issued prior to the execution of such supplemental indenture and entitled to the
benefit of such provision nor (ii) modify the rights of the Holder of any such Security with respect to such provision or (B) shall become effective only when there is no such Security Outstanding; or
(8) to establish the form or terms of all or any Securities of any series as permitted by Sections 201 and 301;
or
(9) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of
Section 611(b); or
-56-
(10) to comply with the requirements of the Commission in order to effect or
maintain the qualification of this Indenture under the Trust Indenture Act; or
(11) to add to or change any of the
provisions of this Indenture with respect to any Securities that by their terms may be converted into securities or other property other than Securities of the same series and of like tenor, in order to permit or facilitate the issuance, payment or
conversion of such Securities; or
(12) to comply with the rules of any applicable Depositary; or
(13) to supplement any of the provisions in this Indenture to such extent as shall be necessary to permit or facilitate the
Defeasance and discharge or Covenant Defeasance of any Securities pursuant to Article Fourteen; provided, in each case, that any such action shall not adversely affect the interests of the Holders of Securities or any other Securities
in any material respect; or
(14) to cure any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture, provided that such action pursuant to this Clause (14) shall not adversely
affect the interests of the Holders of any Securities in any material respect.
Section 902. Supplemental Indentures With Consent of Holders.
Except as may otherwise be provided pursuant to Section 301 for all or any specific Securities of any series, with the consent
of the Holders of not less than a majority in principal amount of all Outstanding Securities of each series affected by such supplemental indenture, by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of such affected Securities under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Security, or reduce
the principal amount thereof or the rate of, interest thereon or any premium payable upon the redemption thereof, or reduce the amount of the principal of an Original Issue Discount Security or any other Security which would be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502, or adversely affect any right of repayment at the option of the Holder of any Security, or reduce the amount of, or postpone the date fixed for, the payment
of any sinking fund or analogous obligation, or change any Place of Payment where, or the coin or currency in which, any Security or any premium or interest thereon is payable, or impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or modify the provisions of this Indenture with respect to the subordination of the Securities in a manner adverse to the Holders, or
-57-
(2) if any Security provides that the Holder may require the Company to convert
such Security, impair such Holder’s right to require conversion of such Security on the terms provided therein, or
(3) reduce the percentage in principal amount of any Outstanding Securities, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or
(4) modify any of the provisions of this Section 902, Section 513 or Section 1005, except
to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby, provided, however, that this
Clause shall not be deemed to require the consent of any Holder with respect to changes in the references to the “Trustee”, and concomitant changes in this Section 902 and Section 1005, or the deletion of this
proviso, in accordance with the requirements of Sections 611(b) and 901(9).
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 Securities or series, or which modifies the rights of the Holders of such Securities or 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 any other Securities or of any other series, as applicable.
It shall not be necessary for any Act of Holders under this Section 902 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental
Indentures.
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article
Nine or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under
this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article Nine, 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.
-58-
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article Nine shall conform to the requirements of the Trust Indenture Act.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article Nine
may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series so modified as to conform, in
the opinion of the Trustee and 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.
Section 907. Subordination Unimpaired.
This Indenture may not be amended at any time to alter the subordination, as provided herein, of any of the Securities then Outstanding without
the written consent of each holder of Senior Indebtedness then outstanding that would be adversely affected thereby.
ARTICLE TEN
Covenants
Section 1001.
Payment of Principal, Premium 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 premium, if any, on) and interest, if any, on the Securities of that series in accordance with the terms of the Securities and this Indenture.
The Company shall have the right to require a Holder, in connection with the payment of the principal of (and premium, if any, on) or
interest, if any, on a Security, to provide the Company with a copy of an appropriate, executed IRS Form W-8 or W-9 (as applicable) or any applicable amended or successor version of such forms. Notwithstanding anything to the contrary contained in
this Indenture, except as may otherwise be provided pursuant to Section 301 for all or any specific Securities of any series, the Company, the Trustee or the Paying Agent may, to the extent it is required to do so by applicable law,
deduct or withhold taxes imposed by the United States of America or other domestic or foreign taxing authorities from the principal of (and premium, if any) and interest payments hereunder or under any Security.
Section 1002. 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, exchange or conversion, 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 initially appoints the principal
-59-
corporate trust office of the Bank as its agent for purposes of presentation and surrender of Securities for payment, conversion, registration of transfer or exchange and for service of notices
and demands to or upon the Company in respect of the Securities and this Indenture. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands; provided that nothing herein shall require the Trustee to accept service of process on behalf of the Company.
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.
With respect to any Global Security, and except as otherwise may be specified for such Global Security as contemplated by
Section 301, the principal corporate trust office of the Bank (or any successor office appointed pursuant to this Section 1002) shall be the Place of Payment where such Global Security may be presented or surrendered for
payment or conversion or for registration of transfer or exchange, or where successor Securities may be delivered in exchange therefor, provided, however, that any such payment, presentation, surrender or delivery effected pursuant to
the Applicable Procedures of the Depositary for such Global Security shall be deemed to have been effected at the Place of Payment for such Global Security in accordance with the provisions of this Indenture.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of
the principal of (or premium, if any, on) or interest, if any, 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 (or premium, if any) or
interest, if any, 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 of its failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, prior to each due date of the principal of
(or premium, if any, on) or interest, if any, on any Securities of that series, deposit (or, if the Company has deposited any trust funds with a trustee pursuant to Section 1404(1), cause such trustee to 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 of its failure so to act.
-60-
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 1003, that such Paying Agent will (1) comply with the provisions of the Trust
Indenture Act applicable to it as a Paying Agent and (2) during the continuance of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment in respect of the Securities of that series,
upon the written request of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Securities of that series.
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. If the Company fails to make any payment contemplated by this paragraph, the Company
shall promptly notify the Trustee of such failure so to act.
Subject to applicable law, any money deposited with the Trustee or any
Paying Agent, or then held by the Company, in trust for the payment of the principal of (or premium, if any, on) or interest, if any, on any Security of any series and remaining unclaimed for two years after such principal (or premium, if any) or
interest, if any, has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor,
look only to the Company 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 repayment, may at the expense of the Company cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of
general circulation in the Borough of Manhattan, The City of New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance
of such money then remaining will be repaid to the Company.
The Bank is initially authorized as Paying Agent hereunder. For the avoidance
of doubt, at any time after the date of this Indenture, the Company may authorize the Trustee or any other Person as Paying Agent, subject to the provisions of this Section 1003.
Any Person into which a Paying Agent may be merged or converted or with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Paying Agent shall be a party, or any Person succeeding to the corporate agency or corporate trust business of such an Paying Agent, shall continue to be a Paying Agent, without the execution or filing of
any paper or any further act on the part of the Company or such Paying Agent.
-61-
A Paying Agent may resign at any time by giving written notice thereof to the Trustee and to the
Company. The Company may at any time terminate the agency of a Paying Agent by giving written notice thereof to such Paying Agent and the Trustee. Upon receiving such a notice of resignation or upon such a termination, the Company may authorize a
successor Paying Agent. Any successor Paying Agent authorized pursuant to this Section 1003 upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like
effect as if originally named as a Paying Agent.
Section 1004. 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 that a review of the activities of the Company during such year and of the Company’s performance under this Indenture has been made under the supervision of the signers thereof, stating whether or not to the
best knowledge of the 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 1005. Waiver of Certain Covenants.
Except as otherwise provided pursuant to Section 301 for all or any Securities of any series, the Company may, with respect to all
or any Securities of any series, omit in any particular instance to comply with any term, provision or condition set forth in any covenant provided pursuant to Section 301(xviii), 901(2) or 901(7) for the benefit of the
Holders of such series or in Article Eight if before the time for such compliance the Holders of at least a majority in principal amount of the Outstanding Securities of such series shall, by Act of such Holders, either waive such compliance
in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so 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. For the avoidance of doubt, this Section 1005 shall not apply to any covenant
of the Company to pay the principal of (and premium, if any, on) and interest, if any, on the Securities.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for such Securities) in accordance with this Article Eleven.
-62-
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be established in or pursuant to a Board Resolution or in another manner specified
as contemplated by Section 301 for such Securities. In case of any redemption at the election of the Company of less than all the Securities of any series (including any such redemption affecting only a single Security), the Company
shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Security Registrar), notify the Security Registrar of such Redemption Date, of the principal amount of Securities of such
series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere
in this Indenture, the Company shall furnish the Trustee and the Security Registrar with an Officers’ Certificate evidencing compliance with such restriction.
Section 1103. Selection by Security Registrar 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 or unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Security Registrar, from the Outstanding Securities of such
series subject to redemption and not previously called for redemption, by such method as the Security Registrar shall deem fair and appropriate and which may provide for the selection for redemption of a portion of the principal amount of any
Security of such series, provided, that to the extent the Securities of such series to be redeemed are in the form of a Global Security, the Securities of such series to be redeemed shall be selected in accordance with the Applicable
Procedures, and provided further that the unredeemed portion of the principal amount of any Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security. If less than all
the Securities of such series and of a specified tenor are to be redeemed (unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 45 days prior to the Redemption Date by the
Security Registrar, or in accordance with the Applicable Procedures, as the case may be, from the Outstanding Securities of such series and specified tenor not previously called for redemption in accordance with the preceding sentence.
If any Security selected for partial redemption is converted in part before termination of the conversion right with respect to the portion of
the Security so selected, the converted portion of such Security shall be deemed (so far as may be) to be the portion selected for redemption. Securities which have been converted during a selection of Securities to be redeemed shall be treated by
the Security Registrar as Outstanding for the purpose of such selection.
Unless the Securities to be redeemed are in the form of a Global
Security, the Security Registrar shall promptly notify the Company and the Trustee in writing of the Securities selected for redemption as set forth above and, in case of any Securities selected for partial redemption as set forth above, the
principal amount thereof to be redeemed.
The provisions of the first and third preceding paragraphs shall not apply with respect to any
redemption affecting only a single Security, whether such Security is to be redeemed in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be in an authorized
denomination (which shall not be less than the minimum authorized denomination) for such Security.
-63-
For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 106 not less than 10 days nor more than 60 days prior to the
Redemption Date (or within such period as otherwise specified as contemplated by Section 301 for the relevant Securities), to each Holder of Securities to be redeemed, at his or her address appearing in the Security Register or, if the
Securities to be redeemed are in the form of Global Securities, in accordance with the Applicable Procedures.
All notices of redemption
shall identify the Securities to be redeemed (including, subject to Section 311, CUSIP numbers, if any) and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such Securities, the principal amounts) of the particular Securities to be redeemed and, if less than all, the Outstanding Securities of any series consisting of a single Security are to
be redeemed, the principal amount of the particular Security to be redeemed,
(4) that on the Redemption Date the
Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date,
(5) for any Securities that by their terms may be converted, the terms of conversion, the date on which the right to convert
the Security to be redeemed will terminate and the place or places where such Securities may be surrendered for conversion,
(6) the place or places where each such Security is are to be surrendered for payment of the Redemption Price, and
(7) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s
request, delivered at least 5 Business Days prior to the date such notice is to be given (unless a shorter period of time shall be acceptable to the Security Registrar), by the Security Registrar in the name and at the expense of the Company.
-64-
Section 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date, other than any Securities called for redemption on that date which have been converted prior to the date of such deposit.
If any Security called for redemption is converted, any money deposited with the Trustee or with any Paying Agent or so segregated and held in
trust for the redemption of such Security shall (subject to any right of the Holder of such Security or any Predecessor Security to receive interest as provided in the last two paragraphs of Section 307 or in the terms of such Security)
be paid to the Company upon Company Request or, if then held by the Company, shall be discharged from such trust.
Section 1106. Securities
Payable on Redemption Date.
Notice of redemption having been given as set forth above, 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 301, installments of interest whose Stated Maturity is prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates, and installments of interest whose Stated Maturity is on the Redemption Date will be payable to the Holders of such Securities to whom the principal shall be payable, in each
case, according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any) and, if applicable, overdue interest shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Security
Registrar so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder thereof or his or her attorney duly authorized in writing), and the Company
shall execute, and the Authenticating Agent 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. If a Global Security is so surrendered, such new Security so issued shall be a new Global Security.
-65-
ARTICLE TWELVE
Sinking Funds
Section 1201.
Applicability of Article.
The provisions of this Article Twelve shall be applicable to any sinking fund for the retirement
of Securities of any series except as otherwise specified as contemplated by Section 301 for such Securities.
The minimum
amount of any sinking fund payment provided for by the terms of any Securities is herein referred to as a “mandatory sinking fund payment”, and any payment in excess of such minimum amount provided for by the terms of such Securities is
herein referred to as an “optional sinking fund payment”. If provided for by the terms of any Securities, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund
payment shall be applied to the redemption of such Securities as provided for by the terms of such Securities.
Section 1202. 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 converted in accordance with their terms or 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 any Securities of such series required to be
made pursuant to the terms of such Securities as and to the extent provided for by the terms of such Securities; provided, that the Securities to be so credited have not been previously so credited. The Securities to be so credited shall be
received by the Security Registrar and credited for such purpose at the Redemption Price, as specified in the Securities so to be redeemed (or at such other prices as may be specified for such Securities as contemplated in Section 301),
for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 1203.
Redemption of Securities for Sinking Fund.
Not less than 60 days (or such shorter period as shall be satisfactory to the Trustee)
prior to each sinking fund payment date for any Securities, the Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing sinking fund payment for such Securities pursuant to the terms of such
Securities, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities pursuant to Section 1202 and will also deliver to the
Security Registrar any Securities to be so delivered. Not less than 60 days prior to each such sinking fund payment date the Securities to be redeemed upon such sinking fund payment date shall be selected in the manner specified in
Section 1103 and notice of the redemption thereof shall be given in the name of and at the expense of the Company in the manner provided in Section 1104. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Sections 1106 and 1107.
-66-
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
Section 1301. Securities Subordinate to Senior Indebtedness.
The subordination provisions in this Article Thirteen shall apply to Securities of any series to the extent established or determined
with respect to the Securities of such series pursuant to Section 301.
The Company covenants and agrees, and each Holder of a
Security, by his or her acceptance thereof, likewise covenants and agrees, that, to the extent and in the manner hereinafter set forth in this Article Thirteen, the indebtedness represented by the Securities and the payment of the principal
of (and premium, if any) and interest on each and all of the Securities are hereby expressly made subordinate and subject in right of payment to the prior payment in full of all Senior Indebtedness.
Notwithstanding the foregoing, if a deposit referred to in Section 1404(1) is made pursuant to Section 1402 or
1403 with respect to any Securities (and provided all other conditions set out in Section 1402 or 1403, as applicable, shall have been satisfied with respect to such Securities), then, following the 90th day after
such deposit, no money or U.S. Government Obligations so deposited, and no proceeds thereon, will be subject to any rights of holders of Senior Indebtedness, including any such rights arising under this Article Thirteen.
Section 1302. Payment Over of Proceeds Upon Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding in connection therewith, relative to the Company or to its creditors, as such, or to its assets, or (b) any liquidation, dissolution or other winding up of the Company, whether voluntary or involuntary and whether or not
involving insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or any other marshalling of assets and liabilities of the Company, then and in any such event the holders of Senior Indebtedness shall be entitled to receive
payment in full of all amounts due or to become due on or in respect of all Senior Indebtedness (including any interest accruing thereon after the commencement of any such case or proceeding), or provision shall be made for such payment in cash or
cash equivalents or otherwise in a manner satisfactory to the holders of Senior Indebtedness, before the Holders of the Securities are entitled to receive any payment on account of principal of (or premium, if any, on) or interest, if any, on the
Securities, and to that end the holders of Senior Indebtedness shall be entitled to receive, for application to the payment thereof, any payment or distribution of any kind or character, whether in cash, property or securities, including any such
payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securities, which may be payable or deliverable in respect of the Securities in
any such case, proceeding, dissolution, liquidation or other winding up event.
-67-
In the event that, notwithstanding the foregoing provisions of this Section 1302, the
Trustee or the Holder of any Security shall have received any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, including any such payment or distribution which may be payable or
deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securities, before all Senior Indebtedness is paid in full or payment thereof provided for, and if such fact shall, at or prior to
the time of such payment or distribution, have been made known to the Trustee or, as the case may be, such Holder, then and in such event such payment or distribution shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company for application to the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior
Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness. Any taxes that have been withheld or deducted from any payment or distribution in respect of the Securities, or any
taxes that ought to have been withheld or deducted from any such payment or distribution that have been remitted to the relevant taxing authority, shall not be considered to be an amount that the Trustee or the Holder of any Security receives for
purposes of this Section.
For purposes of this Article Thirteen only, the words “cash, property or securities” shall not
be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other corporation or other entity, provided for by a plan of reorganization or readjustment which are subordinated in right of
payment to all Senior Indebtedness which may at the time be outstanding to substantially the same extent as, or to a greater extent than, the Securities are so subordinated as provided in this Article Thirteen. The consolidation of the
Company with, or the merger of the Company into, or the conveyance, transfer or lease by the Company of its properties and assets substantially as an entirety, to another Person upon the terms and conditions set forth in Article Eight, or the
liquidation or dissolution of the Company following any such conveyance or transfer, shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the
Company for the purposes of this Section 1302 if the Person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance, transfer or lease of such properties and assets substantially as an
entirety, as the case may be, shall, as a part of such consolidation, merger, conveyance, transfer or lease, comply with the conditions set forth in Article Eight.
Section 1303. Prior Payment to Senior Indebtedness Upon Acceleration of Securities.
In the event that any Securities are declared due and payable before their Stated Maturity, then and in such event the holders of Senior
Indebtedness shall be entitled to receive payment in full of all amounts due or to become due on or in respect of all Senior Indebtedness or provision shall be made for such payment in cash, before the Holders of the Securities are entitled to
receive any payment (including any payment which may be payable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securities) by the Company on account of the principal of (or premium, if any,
on) or interest, if
-68-
any, on the Securities or on account of the purchase or other acquisition of Securities; provided, however, that nothing in this Section 1303 shall prevent the
satisfaction of any sinking fund payment in accordance with Article Twelve by delivering and crediting pursuant to Section 1202 Securities which have been acquired (upon redemption or otherwise) prior to such declaration of
acceleration.
In the event that, notwithstanding the foregoing, the Company shall make any payment to the Trustee or the Holder of any
Security prohibited by the foregoing provisions of this Section, and if such fact shall, at or prior to the time of such payment, have been made known to the Trustee or, as the case may be, such Holder, then and in such event such payment shall be
paid over and delivered forthwith to the Company.
Section 1304. No Payment When Senior Indebtedness in Default.
Subject to the last paragraph of this Section 1304, (a) (i) in the event and during the continuation of any default in
the payment of principal of (or premium, if any) or interest on any Senior Indebtedness beyond any applicable grace period with respect thereto, or (ii) in the event that any event of default with respect to any Senior Indebtedness shall have
occurred and be continuing permitting the holders of such Senior Indebtedness (or a trustee on behalf of the holders thereof) to declare such Senior Indebtedness due and payable prior to the date on which it would otherwise have become due and
payable, whether or not such Senior Indebtedness has been so accelerated (provided that, in the case of Clause (i) or Clause (ii), if such default in payment or event of default shall have been cured or waived or shall have ceased to
exist and any such declaration of acceleration shall have been rescinded or annulled, then such default in payment or event of default, as the case may be, shall be deemed not to have occurred for the purposes of this Section 1304), or
(b) in the event that any judicial proceeding shall be pending with respect to any such default in payment or event of default that shall be deemed to have occurred for the purpose of this Section, then no payment (including any payment which
may be payable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securities) shall be made by the Company on account of principal of (or premium, if any, on) or interest, if any on the
Securities or on account of the purchase or other acquisition of Securities; provided, however, that nothing in this Section 1304 shall prevent the satisfaction of any sinking fund payment in accordance with Article
Twelve by delivering and crediting pursuant to Section 1202 Securities which have been acquired (upon redemption or otherwise) prior to such default in payment.
In the event that, notwithstanding the foregoing, the Company shall make any payment to the Trustee or the Holder of any Security prohibited
by the provisions of this Section, and if such fact shall, at or prior to the time of such payment, have been made known to the Trustee or, as the case may be, such Holder, then and in such event such payment shall be paid over and delivered
forthwith to the Company.
No default in payment or event of default with respect to any Senior Indebtedness shall be deemed to be a
default in payment or event of default of the kind specified in Clause (a)(i) or (a)(ii) of the first paragraph of this Section 1304, and no judicial proceeding with respect to any such default in payment or event of default shall be deemed
to be a judicial proceeding of the kind specified in Clause (b) of the first paragraph of this Section 1304, if (x) the Company shall be disputing the occurrence or
-69-
continuation of such default in payment or event of default, or any obligation purportedly giving rise to such default in payment or event of default, and (y) no final judgment holding that
such default in payment or event of default has occurred and is continuing shall have been issued. For this purpose, a “final judgment” means a judgment that is issued by a court having jurisdiction over the Company or its property, is
binding on the Company or its property, is in full force and effect and is not subject to judicial appeal or review (including because the time within which a party may seek appeal or review has expired); provided that, if any such judgment
has been issued but is subject to judicial appeal or review, it shall nevertheless be deemed to be a final judgment unless the Company shall in good faith be prosecuting such appeal or a proceeding for such review and shall have obtained a stay of
execution pending such appeal or review. Notwithstanding the foregoing, this paragraph shall not apply to any default in payment or event of default with respect to any Senior Indebtedness as to which the Company has waived the application of this
paragraph in the instrument evidencing such Senior Indebtedness or by which such Senior Indebtedness is created, incurred, assumed or guaranteed by the Company.
Section 1305. Payment Permitted in Certain Situations.
Nothing contained in this Article Thirteen or elsewhere in this Indenture or in any of the Securities shall prevent (a) the
Company, at any time except during the pendency of any case, proceeding, dissolution, liquidation or other winding up, assignment for the benefit of creditors or other marshalling of assets and liabilities of the Company referred to in
Section 1302 or under the conditions described in Section 1303 or 1304, from making payments at any time of or on account of the principal of (and premium, if any, on) or interest, if any, on the Securities, or on
account of the purchase or other acquisition of Securities, or (b) the application by the Trustee of any money deposited with it hereunder to the payment of or on account of the principal of (and premium, if any, on) or interest, if any, on the
Securities or the retention of such payment by the Holders, if, at the time of such application by the Trustee, it did not have knowledge that such payment would have been prohibited by the provisions of this Article Thirteen.
Section 1306. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness or the provision for such payment in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of Senior Indebtedness, the Holders of the Securities shall be subrogated to the extent of the payments or distributions made to the holders of such Senior Indebtedness pursuant to the provisions of this Article
Thirteen (equally and ratably with the holders of all Existing Senior Subordinated Indebtedness and all indebtedness of the Company which by its express terms is subordinated to indebtedness of the Company to substantially the same extent as the
Securities and the Existing Senior Subordinated Indebtedness are subordinated to the Senior Indebtedness and is entitled to like rights of subrogation) to the rights of the holders of such Senior Indebtedness to receive payments and distributions of
cash, property and securities applicable to the Senior Indebtedness until the principal of (and premium, if any, on) and interest on the Securities shall be paid in full. For purposes of such subrogation, no payments or distributions to the holders
of the Senior Indebtedness of any cash, property or securities to which the Holders of the Securities or the Trustee would be entitled except for the provisions of this Article Thirteen, and no payments over pursuant to the provisions of this
Article Thirteen to the holders of Senior Indebtedness by Holders of the Securities or the Trustee, shall, as among the Company, its creditors other than holders of Senior Indebtedness and the Holders of the Securities, be deemed to be a
payment or distribution by the Company to or on account of the Senior Indebtedness.
-70-
Section 1307. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the purpose of defining the relative rights of the Holders of the Securities on
the one hand and the holders of Senior Indebtedness (and, in the case of Section 1315, the holders of Existing Senior Subordinated Indebtedness) on the other hand. Nothing contained in this Article Thirteen or elsewhere in this
Indenture or in the Securities is intended to or shall (a) impair, as among the Company, its creditors other than holders of Senior Indebtedness and the Holders of the Securities, the obligation of the Company, which is absolute and
unconditional (and which, subject to the rights under this Article of the holders of Senior Indebtedness, is intended to rank equally with all other general obligations of the Company), to pay to the Holders of the Securities the principal of (and
premium, if any, on) and interest, if any, on the Securities as and when the same shall become due and payable in accordance with their terms; or (b) affect the relative rights against the Company of the Holders of the Securities and creditors
of the Company other than the holders of Senior Indebtedness and Existing Senior Subordinated Indebtedness; or (c) prevent the Trustee or the Holder of any Security from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article of the holders of Senior Indebtedness to receive cash, property and securities otherwise payable or deliverable to the Trustee or such Holder.
Section 1308. Trustee to Effectuate Subordination and Payment Provisions.
Each Holder of a Security by his or her acceptance thereof authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination and payment provisions provided in this Article and appoints the Trustee his attorney-in-fact for any and all such purposes.
Section 1309. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Indebtedness to enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company or by any act or failure to act, in good faith, by any such holder, or by any non-compliance by the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise charged with.
Without in any way limiting the generality of
the foregoing paragraph, the holders of Senior Indebtedness may, at any time and from time to time, without the consent of or notice to the Trustee or the Holders of the Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article Thirteen or the obligations hereunder of the Holders of the Securities to the holders of Senior Indebtedness do any one or more of the following: (i) change
the manner, place or terms of payment or extend the time of payment of, or renew or alter, Senior Indebtedness or otherwise amend or supplement in any manner Senior Indebtedness or any instrument evidencing the same or any agreement under
-71-
which Senior Indebtedness is outstanding; (ii) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing Senior Indebtedness; (iii) release
any Person liable in any manner for the collection of Senior Indebtedness; and (iv) exercise or refrain from exercising any rights against the Company and any other Person.
Section 1310. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any fact known to the Company which would prohibit the making of any payment or
distribution to or by the Trustee in respect of the Securities. Notwithstanding the provisions of this Article Thirteen or any other provision of this Indenture, the Trustee shall not be charged with knowledge of the existence of any facts
which would prohibit the making of any payment or distribution to or by the Trustee in respect of the Securities, unless and until the Trustee shall have received written notice thereof from the Company or a holder of Senior Indebtedness or from any
trustee therefor; and, prior to the receipt of any such written notice, the Trustee, subject to the provisions of Section 601, shall be entitled in all respects to assume that no such facts exist.
Subject to the provisions of Section 601, the Trustee shall be entitled to rely on the delivery to it of a written notice by a
Person representing himself to be a holder of Senior Indebtedness (or a trustee therefor) to establish that such notice has been given by a holder of Senior Indebtedness (or a trustee therefor). In the event that the Trustee determines in good faith
that further evidence is required with respect to the right of any Person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Article Thirteen, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the
rights of such Person under this Article Thirteen, and if such evidence is not furnished, the Trustee may defer any payment or distribution to such Person pending judicial determination as to the right of such Person to receive such payment.
Section 1311. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Company referred to in this Article Thirteen, the Trustee, subject to the provisions
of Section 601, and the Holders of the Securities shall be entitled to rely upon any order or decree entered by any court of competent jurisdiction in which such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a certificate of the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit of creditors, agent or other Person making such payment or
distribution, delivered to the Trustee or to the Holders of Securities, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of Senior Indebtedness and other indebtedness of the Company,
the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article.
-72-
Section 1312. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness and shall not be liable to any such holders or
creditors if it shall in good faith pay over or distribute to Holders of Securities or to the Company or to any other Person cash, property or securities to which any holders of Senior Indebtedness shall be entitled by virtue of this Article
Thirteen or otherwise. With respect to the holders of Senior Indebtedness, the Trustee undertakes to perform or to observe only such of its covenants or obligations as are specifically set forth in this Article and no implied covenants or
obligations with respect to holders of Senior Indebtedness shall be read into this Indenture against the Trustee.
Section 1313. Rights of Trustee
as Holder of Senior Indebtedness; Preservation of Trustee’s Rights.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article Thirteen with respect to any Senior Indebtedness which may at any time be held by it, to the same extent as any other holder of Senior Indebtedness and nothing in this Indenture shall deprive the
Trustee of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 607.
Section 1314. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term
“Trustee” as used in this Article shall in such case (unless the context otherwise requires) be construed as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article Thirteen in addition to or in place of the Trustee; provided, however, that Section 1313 shall not apply to the Company or any Affiliate of the Company (including the Bank) if it or such
Affiliate acts as Paying Agent.
Section 1315. Securities to Rank Pari Passu with Existing Senior Subordinated Indebtedness.
Subject to the provisions of this Section 1315 and to any provisions established or determined with respect to Securities of any
series pursuant to Section 301, the Securities shall rank pari passu in right of payment with the Existing Senior Subordinated Indebtedness.
Upon the occurrence of any of the events specified in Clauses (a), (b) or (c) of the first paragraph of Section 1302,
the provisions of Section 1302 and the corresponding provisions of each indenture or other instrument or document establishing or governing the terms of any Existing Senior Subordinated Indebtedness shall be given effect on a pro
rata basis to the determination of the amount of cash, property or securities which may be payable or deliverable as between the holders of Senior Indebtedness, on the one hand, and Holders of Securities and holders of Existing Senior
Subordinated Indebtedness, on the other hand.
-73-
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1401. Company’s Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 1402 or 1403 applied to any Securities or any series of
Securities, as the case may be, designated pursuant to Section 301 as being defeasible pursuant to such Section 1402 or 1403, in accordance with any applicable requirements provided pursuant to Section 301
and upon compliance with the conditions set forth below in this Article Fourteen. Any such election shall be evidenced by a Board Resolution or in another manner specified as contemplated by Section 301 for such Securities.
Section 1402. Defeasance and Discharge.
Upon the Company’s exercise of its option (if any) to have this Section 1402 applied to any Securities or any series of
Securities, as the case may be, the Company shall be deemed to have been discharged from its obligations, and the provisions of Article Thirteen shall cease to be effective, with respect to such Securities as provided in this
Section 1402 on and after the date the conditions set forth in Section 1404 are satisfied (hereinafter called “Defeasance”). For this purpose, such Defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by such Securities and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense and
direction of the Company, shall execute proper instruments acknowledging the same), subject to the following which shall survive until otherwise terminated or discharged hereunder: (1) the rights of Holders of such Securities to receive, solely
from the trust fund described in Section 1404 and as more fully set forth in such Section, payments in respect of the principal of (and premium, if any, on) and interest, if any, on such Securities when payments are due, (2) the
Company’s obligations with respect to such Securities under Sections 304, 305, 306, 1002 and 1003, (3) the rights, powers, trusts, duties and immunities of the Trustee hereunder (including, without
limitation, the Company’s obligations to the Trustee under Section 607(3)) and (4) this Article Fourteen. Subject to compliance with this Article Fourteen, the Company may exercise its option (if any) to have this
Section 1402 applied to any Securities notwithstanding the prior exercise of its option (if any) to have Section 1403 applied to such Securities. For the avoidance of doubt, following a Defeasance of any series of Securities,
payment of the Securities of such series may not be accelerated because of an Event of Default.
Section 1403. Covenant Defeasance.
Upon the Company’s exercise of its option (if any) to have this Section 1403 applied to any Securities or any series of
Securities, as the case may be, (1) the Company shall be released from its obligations under any covenants provided pursuant to Sections 301(xviii), 901(2) or 901(7) for the benefit of the Holders of such Securities,
(2) the occurrence of any event specified in Sections 503(c) (with respect to any such covenants provided pursuant to Sections 301(xviii), 901(2) or 901(7)) and, if applicable, pursuant to 501(3)
shall be deemed not
-74-
to be or result in a Default and (3) the provisions of Article Thirteen shall cease to be effective, in each case with respect to such Securities as provided in this
Section 1403 on and after the date the conditions set forth in Section 1404 are satisfied (hereinafter called “Covenant Defeasance”). For this purpose, such Covenant Defeasance means that, with respect to
such Securities, 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 specified Section (to the extent so specified in the case of Section 503(c)) or
Article Thirteen, whether directly or indirectly by reason of any reference elsewhere herein to any such Section or Article or by reason of any reference in any such Section or Article to any other provision herein or in any other document,
but the remainder of this Indenture and such Securities shall be unaffected thereby. For the avoidance of doubt, following a Covenant Defeasance with respect to any Securities or series of Securities, the Trustee may not exercise any right of the
Trustee or the Holders under Section 503 with respect to such Securities or series of Securities because of a Default specified in Clause (2) of this Section 1403.
Section 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions precedent or, as specifically noted below, subsequent to application of either Section 1402
or 1403 to the Securities or any series of Securities, as the case may be:
(1) The Company shall irrevocably have
deposited or caused to be deposited with the Trustee (or another trustee which satisfies the requirements contemplated by Section 609 and agrees to comply with the provisions of this Article Fourteen applicable to it) as trust
funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities, (A) money in an amount, or (B) U.S. Government Obligations which
through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day prior to the due date of any payment, money in an amount, (C)) such other obligations or arrangements as
may be specified as contemplated by Section 301 with respect to such Securities or (D) a combination thereof, in each case sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or any such other qualifying trustee) to pay and discharge, (i) the principal of (and premium, if any, on) and interest, if
any, on such Securities on the respective Stated Maturities, to maturity or redemption, as the case may be, and (ii) any mandatory sinking fund payments or analogous payments applicable to the Outstanding Securities of such series on the due
dates thereof. Before such a deposit the Company may make arrangements satisfactory to the Trustee for the redemption of Securities at a future date or dates in accordance with the terms of this Indenture and such Securities. As used herein,
“U.S. Government Obligation” means (x) any security which is (i) a direct obligation of the United States of America for the payment of which the full faith and credit of the United States of America is pledged or
(ii) an obligation of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States
of America, which, in either case (i) or (ii), is not callable or redeemable at the option of the issuer thereof, and (y) any depositary receipt issued by a bank (as defined in
-75-
Section 3(a)(2) of the Securities Act) as custodian with respect to any U.S. Government Obligation which is specified in Clause (x) above and held by such bank for the account of the
holder of such depositary receipt, or with respect to any specific payment of principal of or interest on any U.S. Government Obligation which is so specified and held, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of principal or interest evidenced by
such depositary receipt.
(2) No event which is, or after notice or lapse of time or both would become, a Default with
respect to such Securities or any other Securities shall have occurred and be continuing at the time of such deposit or, with regard to any such event specified in Sections 501(1) and (2), at any time on or prior to the 90th day
after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 90th day).
(3) Such Defeasance or Covenant Defeasance shall not (A) 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 the Trust Indenture Act) or (B) result in the trust arising from such deposit constituting an investment company within the meaning of the
Investment Company Act unless such trust shall be registered under the Investment Company Act or exempt from registration thereunder.
(4) Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any
other agreement or instrument to which the Company is a party or by which it is bound.
(5) Such Defeasance or Covenant
Defeasance shall not cause any Securities of such series then listed on any registered national securities exchange under the Exchange Act to be delisted.
(6) In the event of an election to have Section 1402 apply to any Securities or any series of Securities, as the
case may be, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the date of this
Indenture, there has been a change in the applicable Federal income tax law, in either case (A) or (B) to the effect that, and based thereon such opinion shall confirm that, the Holders of such Securities will not recognize gain or loss
for Federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to such Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be
the case if such deposit, Defeasance and discharge were not to occur.
(7) In the event of an election to have
Section 1403 apply to any Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Securities will not recognize gain or loss
for Federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the
case if such deposit and Covenant Defeasance were not to occur.
-76-
(8) Such defeasance or covenant defeasance shall be effected in compliance with
any additional terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 301.
(9) At the time of such deposit, (A) no default in the payment of any principal of or premium or interest on any Senior
Indebtedness shall have occurred and be continuing, (B) no event of default with respect to any Senior Indebtedness shall have resulted in such Senior Indebtedness becoming, and continuing to be, due and payable prior to the date on which it
would otherwise have become due and payable (unless payment of such Senior Indebtedness has been made or duly provided for), and (C) no other event of default with respect to any Senior Indebtedness shall have occurred and be continuing
permitting (after notice or lapse of time or both) the holders of such Senior Indebtedness (or a trustee on behalf of such holders) to declare such Senior Indebtedness due and payable prior to the date on which it would otherwise have become due and
payable.
(10) The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that all conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with.
Section 1405.
Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of
the fifth paragraph of Section 1003, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee or other qualifying trustee (solely for purposes of this Section 1405, the Trustee and
any such other trustee are referred to collectively as the “Trustee”) pursuant to Section 1404 in respect of any Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities
and this Indenture, to the payment, either directly or through any such Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities, of all sums due and to become due thereon in
respect of principal and any premium and interest, but money so held in trust need not be segregated from other funds except to the extent required by law. Subject to the satisfaction of the applicable conditions in Section 1404, money
and U.S. Government Obligations (including the proceeds thereof) so held in trust shall not be subject to the provisions of Article Thirteen.
The Company shall pay and indemnify the Trustee and any Paying Agent against any tax, fee or other charge imposed on or assessed against the
U.S. Government Obligations deposited pursuant to Section 1404 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of Outstanding
Securities.
-77-
Anything in this Article Fourteen to the contrary notwithstanding, the Trustee or Paying
Agent, as applicable, shall deliver or pay to the Company from time to time upon Company Request any money or U.S. Government Obligations held by it as provided in Section 1404 with respect to any Securities which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect the Defeasance or Covenant
Defeasance, as the case may be, with respect to such Securities.
Anything herein to the contrary notwithstanding, if and to the extent
the deposited money or U.S. Government Obligations (or the proceeds thereof) either (i) cannot be applied by the Trustee in accordance with this Section 1405 because of a court order or (ii) are for any reason insufficient in
amount, then the Company’s obligations to pay principal of (and premium, if any) and interest (if any) on the Securities of such series shall be reinstated to the extent necessary to cover the deficiency on any due date for payment. In any case
specified in Clause (i), the Company’s interest in the deposited money and U.S. Government Obligations (and proceeds thereof) shall be reinstated to the extent the Company’s payment obligations are reinstated.
This instrument 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.
-78-
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, and their
respective corporate seals to be hereunto affixed and attested, all as of the day and year first above written.
|
|
|
|
|
| THE BANK OF NEW YORK MELLON CORPORATION |
|
|
| By |
|
/s/ Scott Freidenrich |
|
|
Title: |
|
Executive Vice President and Treasurer |
|
|
Name: |
|
Scott Freidenrich |
|
|
|
| [Corporate Seal] |
|
| Attest: |
|
| /s/ Craig T. Beazer |
| Title: |
|
Secretary |
| Name: |
|
Craig T. Beazer |
|
|
|
|
|
| WILMINGTON TRUST, NATIONAL ASSOCIATION |
|
|
| By |
|
/s/ W. Thomas Morris, II |
|
|
Title: |
|
Vice President |
|
|
Name: |
|
W. Thomas Morris, II |
Signature Page to
Senior Subordinated Debt Indenture
-79-
STATE OF NEW YORK )
)
ss.:
COUNTY OF NEW YORK )
On the 9th day of February, 2016, before me personally came Craig T. Beazer, to me known, who, being by me duly sworn, did depose and say that
he or she is the Secretary of THE BANK OF NEW YORK MELLON CORPORATION, one of the corporations described in and which executed the foregoing instrument; that he or she knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation, and that he or she signed his or her name thereto by like authority.
|
| /s/ SYLVIA COHEN
Notary Public in and for said State |
(NOTARIAL SEAL)
Signature Page to
Senior Subordinated Debt Indenture
-80-
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK)
On the 9th day of February,
2016, before me personally came Scott Freidennch, to me known, who, being by me duly sworn, did depose and say that he or she is an Executive Vice President and the Treasurer of THE BANK OF NEW YORK MELLON CORPORATION, one of the corporations
described in and which executed the foregoing instrument; that he or she knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he or she signed his or her name thereto by like authority.
|
| /s/ SYLVIA COHEN
Notary Public in and for said State |
(NOTARIAL SEAL)
Signature Page to
Senior Subordinated Debt Indenture
-81-
Exhibit 4.17
THIS NOTE IS NOT A SAVINGS ACCOUNT, DEPOSIT OR OTHER OBLIGATION OF ANY BANK OR NONBANK SUBSIDIARY OF THE COMPANY AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE DEPOSIT INSURANCE FUND
OR ANY OTHER GOVERNMENTAL AGENCY.
IF THIS NOTE IS REGISTERED IN THE NAME OF CEDE & CO. AS NOMINEE FOR THE DEPOSITORY TRUST COMPANY,
THEN THE FOLLOWING LEGEND SHALL APPLY:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED FORM, THIS NOTE MAY NOT
BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A
NOMINEE OF SUCH DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
IF APPLICABLE, THE “TOTAL AMOUNT OF OID,” “ORIGINAL YIELD TO MATURITY” AND “INITIAL SHORT ACCRUAL PERIOD OID” (COMPUTED
UNDER THE EXACT METHOD) SET FORTH BELOW HAVE BEEN COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT RULES.
|
|
|
|
|
| CUSIP: - |
|
|
|
ISIN: |
| REGISTERED |
|
|
|
REGISTERED |
| No. FXR- |
|
|
|
$ |
THE BANK OF NEW YORK MELLON CORPORATION
[SENIOR MEDIUM-TERM NOTE SERIES I]
[SENIOR SUBORDINATED MEDIUM-TERM NOTE SERIES J]
(Fixed Rate)
|
|
|
|
|
| ORIGINAL ISSUE DATE: |
|
INTEREST RATE: |
|
STATED MATURITY DATE: |
|
|
|
| REDEMPTION COMMENCEMENT
DATE: |
|
INITIAL REDEMPTION
PERCENTAGE: |
|
ANNUAL REDEMPTION PERCENTAGE
REDUCTION: |
|
|
|
| HOLDER’S OPTIONAL
REPAYMENT DATE(S): |
|
TOTAL AMOUNT OF OID: |
|
ORIGINAL YIELD TO
MATURITY: |
|
|
|
| INITIAL SHORT ACCRUAL PERIOD
OID: |
|
ISSUE PRICE: |
|
INTEREST PAYMENT DATES: |
CALCULATION AGENT:
¨ IF BOX IS CHECKED, THIS NOTE IS AN AMORTIZING NOTE AND INFORMATION REGARDING AMORTIZING PAYMENT DATES AND AMORTIZING PAYMENT AMOUNTS IS PROVIDED IN AN
ADDENDUM.
¨ IF BOX IS CHECKED, THIS NOTE IS A RENEWABLE NOTE OR AN EXTENDIBLE
NOTE AND INFORMATION REGARDING RENEWAL DATE, NEW MATURITY DATE, FINAL MATURITY DATE OR EXTENSION PERIOD, AS APPLICABLE, AND ANY OTHER APPROPRIATE INFORMATION IS PROVIDED IN AN ADDENDUM.
The Bank of New York Mellon Corporation, a Delaware corporation (the “Company”, which term includes any successor corporation
under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of
on the
Stated Maturity Date specified above (except to the extent redeemed or repaid prior to the Stated Maturity Date), and to pay interest thereon at a rate per annum equal to the Interest Rate specified above, until the principal hereof is paid or duly
made available for payment. The Company will pay interest on the day of and
(each an “Interest Payment Date”) in each year commencing on the first Interest Payment Date next succeeding the Original Issue Date specified above (which for
avoidance of doubt shall be ), unless the Original Issue Date occurs between the Regular Record Date (as defined below) with respect to the first Interest Payment Date and the
next succeeding Interest Payment Date or on an Interest Payment Date, in which case commencing on the second Interest Payment Date succeeding the Original Issue Date, to the registered holder of this Note on the Regular Record Date with respect to
such Interest Payment Date, and on the Stated Maturity Date (or any Redemption Date as defined below or any Holder’s Optional Repayment Date with respect to which such option has been exercised, each such Stated Maturity Date, Redemption Date
and Holder’s Optional Repayment Date being herein referred to as a “Maturity Date” with respect to the principal repayable on such date). Interest on this Note will accrue from the most recent Interest Payment Date to which interest
has been paid or duly provided for or, if no interest has been paid or duly provided for, from the Original Issue Date specified above until the principal hereof has been paid or duly made available for payment. If the Maturity Date or an Interest
Payment Date falls on a day which is not a Business Day as defined below, principal, premium, if any, or interest payable with respect to such Maturity Date or Interest Payment Date will be paid on the next succeeding Business Day. If any payment on
the Maturity Date or an Interest Payment Date is made on the next succeeding Business Day in accordance with the immediately preceding sentence, no interest on such payment shall accrue for the period from and after such Maturity Date or Interest
Payment Date, as the case may be. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, subject to certain exceptions, be paid to the Person in whose name this Note (or one or more predecessor Notes)
is registered at the close of business on the Regular Record Date for such interest, which shall be the fifteenth calendar day (whether or not a Business Day) next preceding such Interest Payment Date; provided, however, that interest
payable at the Maturity Date will be payable to the Person to whom the principal hereof shall be payable. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and
may either be paid to the Person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on a Special Record Date for the payment of such
-2-
Defaulted Interest to be fixed by the Company, notice whereof shall be given to the Holder of this Note and the Trustee not less than 10 days prior to such Special Record Date, or may be paid at
any time in any other lawful manner, all as more fully provided in the Indenture.
As used herein, “Business Day”
means any day other than a Saturday, Sunday, legal holiday or other day on which banking institutions in The City of New York are authorized or required by law, regulation or executive order to close.
Payment of the principal of, premium, if any, on and interest due on this Note will be made in immediately available funds at the office
or agency of the Company maintained for that purpose in the Borough of Manhattan, The City of New York [in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts][If
applicable, insert description of currency, currencies, composite currency, composite currencies or currency units in which the principal of or any premium or interest is payable]; provided, however, that payment of interest on any
Interest Payment Date other than the Maturity Date may be made at the option of the Company (i) by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register and (ii) by wire transfer
in immediately available funds at such place and to such account as may be designed by the Person entitled thereto as specified in the Security Register in writing not less than 10 days prior to the date of the interest payment; and provided,
further that payment may be made pursuant to the Applicable Procedures. A Holder of not less than $10,000,000 aggregate principal amount of the Notes having the same Interest Payment Dates may by written notice to the Paying and
Authenticating Agent and Security Registrar (referred to below) at its principal corporate trust office in The City of New York (or at such other address as the Company shall give notice in writing), on or before the Regular Record Date preceding an
Interest Payment Date, arrange to have the interest payable on all Notes held by such Holder on such Interest Payment Date, and all subsequent Interest Payment Dates until written notice to the contrary is given to the Paying and Authenticating
Agent and Security Registrar, made by wire transfer of immediately available funds to a designated account maintained at a bank in The City of New York (or other bank consented to by the Company) as the holder of such Notes shall have designated;
provided that such bank has appropriate facilities therefor.
[Insert if this Note is a Senior Subordinated Medium-Term Note
— This Note is one of a duly authorized series of securities of the Company (hereinafter called the “Securities”) issued and to be issued in one or more series under an Indenture dated as of February 9, 2016 (herein called the
“Indenture”) between the Company and Wilmington Trust, National Association, as Trustee (herein called 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, duties and immunities thereunder of the Company, the Trustee and the Holders of the Senior Subordinated Medium-Term Notes Series J (the “Notes”) and of
the terms upon which the Notes are, and are to be, authenticated and delivered. The Bank of New York Mellon, acting through its principal corporate trust office is the initial Paying Agent for the payment of interest and principal of the Notes; The
Bank of New York Mellon acting through its principal corporate trust office is the Authenticating Agent for the Notes; and The Bank of New York Mellon acting through its principal corporate trust office is the Security Register for the Notes (the
“Paying and Authenticating Agent and Security Registrar”). The Notes may bear different Original Issue Dates, mature at different times, bear interest at different rates and vary in such other ways as are provided in the Indenture.]
[Insert if this Note is a Senior Medium-Term Note — This Note is one of a duly authorized series of securities of the
Company (hereinafter called the “Securities”) issued and to be issued in one or more series under an Indenture dated as of February 9, 2016 (herein called the “Indenture”) between the
-3-
Company and Deutsche Bank Trust Company Americas, as Trustee (herein called 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, duties and immunities thereunder of the Company, the Trustee and the Holders of the Senior Medium-Term Notes Series I (the “Notes”) and of
the terms upon which the Notes are, and are to be, authenticated and delivered. The Bank of New York Mellon, acting through its principal corporate trust office is the initial Paying Agent for the payment of interest and principal of the Notes; The
Bank of New York Mellon acting through its principal corporate trust office is the Authenticating Agent for the Notes; and The Bank of New York Mellon acting through its principal corporate trust office is the Security Register for the Notes (the
“Paying and Authenticating Agent and Security Registrar”). The Notes may bear different Original Issue Dates, mature at different times, bear interest at different rates and vary in such other ways as are provided in the Indenture.]
This Note is not subject to any sinking fund.
[Insert if this Note is a Senior Subordinated Medium-Term Note — The Indenture contains provisions for defeasance at any time of (a) the entire indebtedness evidenced by this Note and/or
(b) certain restrictive covenants and Defaults with respect to this Note, in each case upon compliance by the Company with certain conditions set forth in the Indenture. At the election of the Company, these provisions shall apply to this
Note.]
[Insert if this Note is a Senior Medium-Term Note — The Indenture contains provisions for defeasance at any time
of (a) the entire indebtedness evidenced by this Note and/or (b) certain restrictive covenants and Events of Default with respect to this Note, in each case upon compliance by the Company with certain conditions set forth in the Indenture.
At the election of the Company, these provisions shall apply to this Note.]
[Insert if this Note is a Senior Subordinated
Medium-Term Note, if applicable – Describe any addition to, elimination of or other change in the Events of Default or Defaults that apply to the Note, and any change in the acceleration provisions in Section 502 of the Indenture.]
[Insert if this Note is a Senior Medium-Term Note, if applicable — Describe any addition to, elimination of or other
change in the Events of Default that apply to the Note, and any change in the right of the Trustee or the requisite Holders of the Notes to declare the principal amount thereof due and payable under Section 502 of the Indenture.]
[If applicable – Describe any addition to, elimination of or other change in the covenants that apply to this Note.]
This Note may be subject to repayment at the option of the Holder on any Holder’s Optional Repayment Date(s), if any, indicated
above. If no Holder’s Optional Repayment Dates are set forth above, this Note may not be so repaid at the option of the Holder hereof prior to the Stated Maturity Date. On any Holder’s Optional Repayment Date this Note shall be repayable
in whole or in part in increments of $[1,000][Insert other minimum denomination] (provided that any remaining principal hereof shall be at least $[1,000][Insert other minimum denomination]) at the option of the Holder hereof at a repayment price
equal to 100% of the principal amount to be repaid, together with interest thereon payable to the date of repayment. For this Note to be repaid in whole or in part at the option of the Holder hereof, this Note must be received, with the form
entitled “Option to Elect Repayment” below duly completed, by the Paying and Authenticating Agent and Security Registrar at the principal corporate trust office of The Bank
-4-
of New York Mellon in The City of New York, or such other address which the Company shall from time to time notify the Holder of this Note, not less than 10 nor more than 60 days prior to the
Holders Optional Repayment Date. Exercise of such repayment option by the Holder hereof shall be irrevocable.
This Note may
be redeemed at the option of the Company on any date on and after the Redemption Commencement Date, if any, specified above (the “Redemption Date”). If no Redemption Commencement Date is set forth above, this Note may not be redeemed at
the option of the Company prior to the Stated Maturity Date. On and after the Redemption Commencement Date, if any, this Note may be redeemed at any time in whole or from time to time in part in increments of $[1,000][Insert other minimum
denomination] (provided that any remaining principal hereof shall be at least $[1,000][Insert other minimum denomination]) at the option of the Company at the applicable Redemption Price (as defined below) together with interest thereon payable to
the Redemption Date, on notice given to the Holder not less than 10 nor more than 60 days prior to the Redemption Date. In the event of redemption of this Note in part only, a new Note for the unredeemed portion hereof shall be issued in the name of
the Holder hereof upon the surrender hereof.
[Insert if this Note is a Senior Subordinated Medium-Term Note —
Notwithstanding the foregoing, the Company may not redeem this Note without having received the prior approval of the “appropriate federal banking agency” with respect to the Company, as defined in Section 3(q) of the Federal Deposit
Insurance Act (12 U.S.C. § 1813(q)), or any successor provision, if then required under capital regulations applicable to the Company.]
Notices to the Holder of this Note with respect to redemption as provided above will be delivered to the Holder’s address listed in the Security Register maintained by the Security Registrar not less
than 10 nor more than 60 days prior to the Redemption Date. Notwithstanding anything in the Indenture or this Note to the contrary, such notice shall be sufficiently given if given to the Depositary for such Security (or its designee), pursuant to
its Applicable Procedures, not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice.
If this Note is redeemable at the option of the Company, the “Redemption Price” shall initially be the Initial Redemption Percentage specified above of the principal amount of this Note to be
redeemed and shall decline at each anniversary of the Redemption Commencement Date by the Annual Redemption Percentage Reduction, if any, specified above, of the principal amount to be redeemed until the Redemption Price is 100% of such principal
amount.
The “Amortized Face Amount” of an Original Issue Discount Note shall be the amount equal to (i) the
Issue Price set forth above plus (ii) that portion of the difference between the Issue Price and the principal amount of such Note that has accrued at the Original Yield to Maturity (computed in accordance with generally accepted United States
bond yield computation principles) by the date of redemption or repayment, as calculated by an agent appointed by the Company, but in no event shall the Amortized Face Amount of an Original Issue Discount Note exceed its principal amount.
Interest payments on this Note will include interest accrued to but excluding the Interest Payment Date or the Maturity Date,
as the case may be. Interest payments for this Note will be computed and paid on the basis of a 360-day year of twelve 30-day months.
If an Event of Default with respect to the Notes shall occur and be continuing, the principal of the Notes may be declared due and
payable in the manner and with the effect provided in the Indenture.
-5-
[Insert if this Note is a Senior Subordinated Medium-Term Note – The indebtedness
evidenced by this Security is, to the extent provided in the Indenture, subordinate and subject in right of payment to the prior payment in full of all Senior Indebtedness, and this Security is issued subject to the provisions of the Indenture with
respect thereto. Each Holder of this Security, by accepting the same, (a) agrees to and shall be bound by the provisions of the Indenture, (b) authorizes and directs the Trustee on his or her behalf to take such actions as may be necessary
or appropriate to effectuate the subordination so provided and (c) appoints the Trustee his or her attorney-in-fact for any and all such purposes. Each Holder hereof, by his or her acceptance hereof, waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder of Senior Indebtedness, whether now outstanding or hereafter created, incurred, assumed or guaranteed, and waives reliance by each such holder upon said provisions.]
[Insert if this Note is a Senior Subordinated Medium-Term Note – Payment of principal on the Securities may be
accelerated only in the case of certain events involving the bankruptcy, insolvency or reorganization of the Company. There is no right of acceleration in the case of a default in the performance of any covenant of the Company, including the payment
of principal or interest. In case a Default with respect to this Security shall occur and be continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the holders of the Securities through appropriate
judicial proceedings. The Indenture defines a Default to include, without limitation, default in the payment of principal of these Securities when due and default for 30 days in any payment of interest on any Security of this series.]
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 the Holders of not less than a majority in principal amount
of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding to be
affected under the Indenture, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether
or not notation of such consent or waiver is made upon this Note.
[Insert if this Note is a Senior Subordinated Medium-Term
Note – 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 this Security 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 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 Default as Trustee and offered the Trustee indemnity or security reasonably satisfactory to the Trustee, 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 or security. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof (and premium, if any, hereon)
or interest hereon on or after the respective due dates expressed herein.]
-6-
[Insert if this Note is a Senior Medium-Term Note – 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 this Security 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 (and premium, if any, hereon) or interest hereon on or after the respective due dates expressed herein.]
If so provided pursuant to the terms of any specific Securities, the above-referenced provisions of the Indenture regarding
the ability of Holders to waive certain defaults, or to request the Trustee to institute proceedings (or to give the Trustee other directions) in respect thereof, may be applied differently with regard to such Securities.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and premium, if any, on) and interest on this Note, at the times, place, and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture, and subject to certain limitations therein set forth, the transfer of this Note may be registered on the
Security Register of the Company upon surrender of this Note for registration of transfer at the office or agency of the Company in any place where the principal of and premium, if any, on and interest on this Note are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar, duly executed by the Holder hereof or by such Holder’s attorney duly authorized in writing and thereupon one or more new Notes and
of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in denominations of $[1,000][Insert other minimum denomination] or any amount in excess thereof which is an integral multiple of
$[1,000][Insert other minimum denomination] and, unless otherwise specified on the face hereof, shall be denominated in U.S. dollars. As provided in the Indenture, and subject to certain limitations therein set forth, the Notes are exchangeable for
a like aggregate principal amount of Notes and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge will 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 Note 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 Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
-7-
No recourse shall be had for the payment of the principal of (and premium, if any) or the
interest on this Note, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture or any indenture supplemental thereto, against any incorporator, shareholder, officer or director, as such, past,
present or future, of the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issue hereof, expressly waived and released.
The Indenture and the Notes shall be governed
by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed in such State.
Under the Indenture, the Company, the Trustee and the holder of the Note waive, to the fullest extent permitted by law, any right to a trial by jury in any proceeding relating to the Notes.
All terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Except to the extent specified in this Note pursuant to Section 301 of the Indenture, in the event of any inconsistency between the
Indenture and this Note, the provisions of the Indenture shall govern.
Unless the Certificate of Authentication hereon has
been executed by the Authenticating Agent under the Indenture by the manual signature of one of its authorized officers, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
-8-
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or
in facsimile, and its corporate seal to be imprinted hereon.
|
|
|
| Dated: |
|
| THE BANK OF NEW YORK MELLON CORPORATION |
|
|
| By: |
|
|
|
|
|
| [SEAL] |
|
| Attest: |
|
| |
|
| CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series
designated therein referred to in the within-mentioned Indenture. |
|
|
| By: |
|
The Bank of New York Mellon |
|
|
As Authenticating Agent |
|
|
| By: |
|
|
|
|
Authorized Officer |
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Company to repay this Note (or portion hereof specified below) pursuant
to its terms at a price equal to the principal amount hereof together with interest to the repayment date, to the undersigned, at
|
| |
| |
| (Please print or typewrite name and address of the undersigned) |
For this Note to be repaid, this Note must be received at the corporate trust office of The Bank of New
York Mellon, in The City of New York, or at such other place or places which the Company shall from time to time notify the Holder of this Note, not less than 10 nor more than 60 days prior to the Holder’s Optional Repayment Date, if any,
specified above, with this “Option to Elect Repayment” form duly completed. Exercise of such repayment option by the holder hereof shall be irrevocable. In the event of repayment of this Note in part only, a new Note or Notes for the
amount of the unpaid portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.
If less
than the entire principal amount of this Note is to be repaid, specify the portion hereof (which shall be in increments of $[1,000][Insert other minimum denomination]) which the Holder elects to have repaid and specify the denomination or
denominations (each of which shall be $[1,000][Insert other minimum denomination] or an integral multiple of $[1,000][Insert other minimum denomination] in excess of $[1,000][Insert other minimum denomination]) of the Notes to be issued to the
Holder for the portion of this Note not being repaid (in the absence of any such specification, one such Note will be issued for the portion not being repaid).
NOTICE: The signature on this Option to Elect Repayment must correspond with the name as written upon the face of this
Note in every particular, without alteration or enlargement or any change whatever.
-10-
ABBREVIATIONS
The following abbreviations, when used in the inscription on this instrument, shall be construed as though they were written out in full according to applicable laws or regulations.
TEN COM—as tenants in common
UNIF GIFT MIN ACT- Custodian
(Minor)
|
|
|
|
|
| Under Uniform Gifts to Minors Act |
|
|
|
|
|
|
(State) |
|
|
TEN ENT—as tenants by the entireties
JT TEN—as joint tenants with right of survivorship and not as tenants in common
Additional abbreviations may also be used though not in the above list.
-11-
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
Please Insert Social Security or Other Identifying Number of Assignee:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING ZIP CODE OF ASSIGNEE: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
the within Note and all rights thereunder, and does hereby irrevocably constitute and appoint
attorney
to transfer said Note on the books of the Company, with full power of substitution in the premises.
NOTICE: The signature(s) to this assignment must correspond with the name as written upon the within instrument in every
particular, without alteration or enlargement, or any change whatever.
NOTICE: The signature(s) must be guaranteed by an eligible guarantor institution (e.g., banks, securities brokers
or dealers, credit unions, national securities exchanges and savings associations) which is a member of or participant in a signature guarantee program recognized by the Securities Registrar pursuant to Rule 17Ad-15 under the Securities Exchange Act
of 1934.
-12-
Exhibit 4.18
THIS NOTE IS NOT A SAVINGS ACCOUNT, DEPOSIT OR OTHER OBLIGATION OF ANY BANK OR NONBANK SUBSIDIARY OF THE COMPANY AND IS NOT INSURED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION, THE DEPOSIT INSURANCE FUND OR ANY OTHER GOVERNMENTAL AGENCY.
IF THIS NOTE IS REGISTERED IN THE NAME OF CEDE & CO. AS
NOMINEE FOR THE DEPOSITORY TRUST COMPANY, THEN THE FOLLOWING LEGEND SHALL APPLY:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE
TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
IF APPLICABLE, THE “TOTAL AMOUNT OF OID”, “ORIGINAL YIELD TO MATURITY” AND “INITIAL SHORT ACCRUAL PERIOD OID” (COMPUTED UNDER
THE EXACT METHOD) SET FORTH BELOW HAVE BEEN COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT RULES.
|
|
|
|
|
|
|
| CUSIP: |
|
|
|
|
|
ISIN: |
| REGISTERED |
|
|
|
|
|
REGISTERED |
| No. FLR- |
|
|
|
|
|
$ |
THE BANK OF NEW YORK MELLON CORPORATION
[SENIOR MEDIUM-TERM NOTE SERIES I]
[SENIOR SUBORDINATED MEDIUM-TERM NOTE SERIES J]
(Floating Rate)
|
|
|
|
|
|
|
| BASE RATE: |
|
ORIGINAL ISSUE DATE: |
|
STATED MATURITY DATE: |
|
ISSUE PRICE: |
|
|
|
|
|
|
|
| INDEX MATURITY: |
|
INITIAL INTEREST RATE: |
|
INTEREST PERIOD: |
|
INTEREST PAYMENT DATES: |
|
|
|
|
| SPREAD: |
|
INITIAL INTEREST RESET DATE: |
|
INTEREST RESET DATES: |
|
CALCULATION AGENT: |
|
|
|
|
| SPREAD MULTIPLIER: |
|
INITIAL REDEMPTION DATE: |
|
MAXIMUM INTEREST RATE: |
|
MINIMUM INTEREST RATE: |
|
|
|
|
| TAX REDEMPTION: |
|
INITIAL REDEMPTION PERCENTAGE: |
|
FIXED RATE COMMENCEMENT DATE: |
|
FIXED INTEREST RATE: |
|
|
|
|
| Yes No |
|
|
|
|
|
|
|
|
|
|
| HOLDER’S OPTIONAL REPAYMENT DATE(S): |
|
ANNUAL REDEMPTION PERCENTAGE REDUCTION: |
|
ORIGINAL YIELD TO MATURITY: |
|
DESIGNATED LIBOR PAGE: |
|
|
|
|
| INITIAL SHORT ACCRUAL PERIOD OID: |
|
TOTAL AMOUNT OF OID: |
|
DESIGNATED CMT MATURITY INDEX: |
|
DESIGNATED CMT TELERATE PAGE: |
-2-
OTHER PROVISIONS:
INTEREST CALCULATION:
|
|
|
| ¨ |
|
REGULAR FLOATING RATE NOTE |
|
|
| ¨ |
|
FLOATING RATE/FIXED RATE NOTE |
|
|
| ¨ |
|
INVERSE FLOATING RATE NOTE |
|
|
| ¨ |
|
IF BOX IS CHECKED, THIS NOTE IS AN AMORTIZING NOTE AND INFORMATION REGARDING AMORTIZING PAYMENT DATES AND AMORTIZING PAYMENT AMOUNTS IS PROVIDED IN AN ADDENDUM. |
|
|
| ¨ |
|
IF BOX IS CHECKED, THIS NOTE IS A RENEWABLE NOTE OR AN EXTENDIBLE NOTE AND INFORMATION REGARDING RENEWAL DATE, NEW MATURITY DATE, FINAL MATURITY DATE OR EXTENSION PERIOD, AS APPLICABLE, AND ANY OTHER APPROPRIATE INFORMATION, IS
PROVIDED IN AN ADDENDUM. |
The Bank of New York Mellon Corporation, a Delaware corporation (the “Company”, which term includes
any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of
on the
Stated Maturity Date specified above (except to the extent redeemed or repaid prior to the Stated Maturity Date), and to pay interest thereon at a rate per annum equal to the Initial Interest Rate specified above until the Initial Interest Reset
Date or Fixed Rate Commencement Date specified above, if any, and thereafter at a rate determined in accordance with the provisions set forth below, depending upon the Base Rate specified above, until the principal hereof is paid or duly made
available for payment. The Company will pay interest on the Interest Payment Dates specified above, commencing with the first Interest Payment Date next succeeding the Original Issue Date specified above, and on the Stated Maturity Date (or any
Redemption Date as defined below or any Holder’s Optional Repayment Date specified above, if any, with respect to which such option has been exercised, each such Stated Maturity Date, Redemption Date and Holder’s Optional Repayment Date
being hereinafter referred to as a “Maturity Date” with respect to the principal repayable on such date); provided, however, that if the Original Issue Date occurs between a Regular Record Date, as defined below, and the next
succeeding Interest Payment Date or on an Interest Payment Date, interest payments will commence on the second Interest Payment Date next succeeding the Original Issue Date, to the registered Holder of this Note on the Regular Record Date with
respect to such second Interest Payment Date; and provided, further, that if an Interest Payment Date (other than an Interest Payment Date that occurs on any Maturity Date) would fall on a day that is not a Business Day, as defined
below, such Interest Payment Date shall be the next day that is a Business Day, except in the case that the Base Rate is LIBOR, if such next Business Day falls in the next succeeding calendar month, such Interest Payment Date will be the next
preceding day that is a Business Day. If any Maturity Date of this Note should fall on a day that is not a Business Day, the payment of interest, principal or premium, if any, due on such date shall be made on the next day that is a Business Day and
no additional interest on such amounts shall accrue from and after such Maturity Date. Interest payable on this Note on any Interest Payment Date will include interest accrued from the Original Issue Date specified above, or the most recent date for
which interest has been paid or duly provided for, to, but excluding, such Interest Payment Date or the Maturity Date,
-3-
as the case may be; provided, however, that in the case of Notes that reset daily or weekly, interest payments on each Interest Payment Date will be the amount of interest accrued
from but excluding the Regular Record Date through which interest has been paid or duly provided for (or from and including the Original Issue Date specified above if no interest has been paid or duly provided for) to and including the Regular
Record Date next preceding the applicable Interest Payment Date, except that the interest payment due on the Maturity Date will include interest accrued to but excluding such date. The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, subject to certain exceptions, be paid to the Person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on the date 15 calendar days prior to an Interest Payment Date
(whether or not a Business Day) (the “Regular Record Date”); provided, however, that interest payable at the Maturity Date will be payable to the Person to whom the principal hereof shall be payable. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Note (or one or more predecessor Notes) 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 whereof shall be given to the Holder of this Note and the Trustee not less than 10 days prior to such Special Record Date, or may be paid at any
time in any other lawful manner, all as more fully provided in the Indenture.
Payment of the principal of, premium, if any, on and
interest due on this Note will be made in immediately available funds at the office or agency of the Company maintained for that purpose in the Borough of Manhattan, The City of New York, [in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private debts][If applicable, insert description of currency, currencies, composite currency, composite currencies or currency units in which the principal of or any premium or
interest is payable]; provided, however, that payment of interest on any Interest Payment Date other than the Maturity Date may be made at the option of the Company (i) by check mailed to the address of the Person entitled thereto
as such address shall appear in the Security Register and (ii) by wire transfer in immediately available funds at such place and to such account as may be designed by the Person entitled thereto as specified in the Security Register in writing
not less than 10 days prior to the date of the interest payment; and provided, further that payment may be made pursuant to the Applicable Procedures. A Holder of not less than $10,000,000 aggregate principal amount of the Notes having
the same Interest Payment Dates may by written notice to the Paying and Authenticating Agent and Security Registrar (referred to below) at its principal corporate trust office in The City of New York (or at such other address as the Company shall
give notice in writing), on or before the Regular Record Date preceding an Interest Payment Date, arrange to have the interest payable on all Notes held by such Holder on such Interest Payment Date, and all subsequent Interest Payment Dates until
written notice to the contrary is given to the Paying and Authenticating Agent and Security Registrar, made by wire transfer of immediately available funds to a designated account maintained at a bank in The City of New York (or other bank consented
to by the Company) as the Holder of such Notes shall have designated; provided that such bank has appropriate facilities therefor.
[Insert if this Note is a Senior Subordinated Medium-Term Note — This Note is one of a duly authorized series of securities of the
Company (hereinafter called the “Securities”) issued and to be issued in one or more series under an Indenture dated as of February 9, 2016 (herein called the “Indenture”) between the Company and Wilmington Trust, National
Association, as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), to
-4-
which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Senior Medium-Term Notes Series J (the “Notes”) and of the terms upon which the Notes are, and are to be, authenticated and delivered. The Bank of New York Mellon, acting through its principal corporate trust office is the
initial Paying Agent for the payment of interest and principal of the Notes; The Bank of New York Mellon acting through its principal corporate trust office is the Authenticating Agent for the Notes; and The Bank of New York Mellon acting through
its principal corporate trust office is the Security Register for the Notes (the “Paying and Authenticating Agent and Security Registrar”). The Notes may bear different Original Issue Dates, mature at different times, bear interest at
different rates and vary in such other ways as are provided in the Indenture.]
[Insert if this Note is a Senior Medium-Term Note —
This Note is one of a duly authorized series of securities of the Company (hereinafter called the “Securities”) issued and to be issued in one or more series under an Indenture dated as of February 9, 2016 (herein called the
“Indenture”) between the Company and Deutsche Bank Trust Company Americas, as Trustee (herein called 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, duties and immunities thereunder of the Company, the Trustee and the Holders of the Senior Medium-Term Notes Series I (the “Notes”) and of the terms
upon which the Notes are, and are to be, authenticated and delivered. The Bank of New York Mellon, acting through its principal corporate trust office is the initial Paying Agent for the payment of interest and principal of the Notes; The Bank of
New York Mellon acting through its principal corporate trust office is the Authenticating Agent for the Notes; and The Bank of New York Mellon acting through its principal corporate trust office is the Security Register for the Notes (the
“Paying and Authenticating Agent and Security Registrar”). The Notes may bear different Original Issue Dates, mature at different times, bear interest at different rates and vary in such other ways as are provided in the Indenture.]
This Note is not subject to any sinking fund.
[Insert if this Note is a Senior Subordinated Medium-Term Note, if applicable — The Indenture contains provisions for defeasance at any time of
(a) the entire indebtedness evidenced by this Note and/or (b) certain restrictive covenants and Defaults with respect to this Note, in each case upon compliance by the Company with certain conditions set forth in the Indenture. At the
election of the Company, these provisions shall apply to this Note.]
[Insert if this Note is a Senior Medium-Term Note, if applicable
— The Indenture contains provisions for defeasance at any time of (a) the entire indebtedness evidenced by this Note and/or (b) certain restrictive covenants and Events of Default with respect to this Note, in each case upon
compliance by the Company with certain conditions set forth in the Indenture. At the election of the Company, these provisions shall apply to this Note.]
[Insert if this Note is a Senior Subordinated Medium-Term Note, if applicable – Describe any addition to, elimination of or other change in the Events of
Default or Defaults that apply to the Note, and any change in the acceleration provisions in Section 502 of the Indenture.]
-5-
[Insert if this Note is a Senior Medium-Term Note, if applicable — Describe any addition to,
elimination of or other change in the Events of Default that apply to the Note, and any change in the right of the Trustee or the requisite Holders of the Notes to declare the principal amount thereof due and payable under Section 502 of the
Indenture.]
[If applicable – Describe any addition to, elimination of or other change in the covenants that apply to this Note.]
This Note may be subject to repayment at the option of the Holder on the Holder’s Optional Repayment Date(s), if any, indicated
above. If no Holder’s Optional Repayment Dates are set forth above, this Note may not be so repaid at the option of the Holder hereof prior to the Stated Maturity Date. On any Holder’s Optional Repayment Date, this Note shall be repayable
in whole or in part in increments of $[1,000][Insert other minimum denomination] (provided that any remaining principal hereof shall be at least $[1,000][Insert other minimum denomination]) at the option of the Holder hereof at a repayment price
equal to 100% of the principal amount to be repaid, together with interest thereon payable to the date of repayment. For this Note to be repaid in whole or in part at the option of the Holder hereof, this Note must be received, with the form
entitled “Option to Elect Repayment” below duly completed, by the Paying and Authenticating Agent and Security Registrar at the principal corporate trust office of The Bank of New York Mellon in The City of New York, or such other address
which the Company shall from time to time notify the Holder of this Note, not less than 10 nor more than 60 days prior to a Holder’s Optional Repayment Date. Exercise of such repayment option by the Holder hereof shall be irrevocable.
This Note may be redeemed at the option of the Company on any date on and after the Initial Redemption Date, if any, specified above (the
“Redemption Date”). If no Initial Redemption Date is set forth above, this Note may not be redeemed at the option of the Company prior to the Stated Maturity Date. On and after the Initial Redemption Date, if any, this Note may be redeemed
at any time in whole or from time to time in part in increments of $[1,000][Insert other minimum denomination] (provided that any remaining principal hereof shall be at least $[1,000][Insert other minimum denomination]) at the option of the Company
at the applicable Redemption Price (as defined below) together with interest thereon payable to the Redemption Date, on notice given to the Holder not less than 10 nor more than 60 days prior to the Redemption Date. In the event of redemption of
this Note in part only, a new Note for the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the surrender hereof.
[Insert if this Note is a Senior Subordinated Medium-Term Note — Notwithstanding the foregoing, the Company may not redeem this Note
without having received the prior approval of the “appropriate federal banking agency” with respect to the Company, as defined in Section 3(q) of the Federal Deposit Insurance Act (12 U.S.C. § 1813(q)), or any successor
provision, if then required under capital regulations applicable to the Company.]
Notices to the Holder of this Note with respect to
redemption as provided above will be delivered to the Holder’s address listed in the Security Register maintained by the Security Registrar not less than 10 nor more than 60 days prior to the Redemption Date. Notwithstanding anything in the
Indenture or this Note to the contrary, such notice shall be sufficiently given if given to the Depositary for such Security (or its designee), pursuant to its Applicable Procedures, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. If this Note is redeemable at the option of the Company, the “Redemption
-6-
Price” shall initially be the Initial Redemption Percentage specified above of the principal amount of this Note to be redeemed and shall decline at each anniversary of the Initial
Redemption Date by the Annual Redemption Percentage Reduction, if any, specified above, of the principal amount to be redeemed until the Redemption Price is 100% of such principal amount.
Accrued interest hereon shall be an amount calculated by multiplying the principal amount hereof by an accrued interest factor. Such accrued
interest factor shall be computed by adding the interest factor calculated for each day from the Original Issue Date or from but excluding the last date for which interest shall have been paid, as the case may be, to the date for which accrued
interest is being calculated. The interest factor for each such day shall be computed by dividing the interest rate applicable to such day by 360 or, in the case of Notes having the Treasury Rate or CMT Rate as their Base Rate, by the actual number
of days in the year.
Except as described below, this Note will bear interest at the rate determined by reference to the Base Rate
specified above (i) plus or minus the Spread, if any, specified above and/or (ii) multiplied by the Spread Multiplier, if any, specified above. The interest rate in effect on each day shall be (a) if such day is an Interest Reset Date
specified above, the interest rate with respect to the Interest Determination Date (as defined below) pertaining to such Interest Rate Reset Date or (b) if such day is not an Interest Reset Date, the interest rate with respect to the Interest
Determination Date pertaining to the next preceding Interest Reset Date, subject to the Maximum or Minimum Interest Rate specified above, if any, provided that the interest rate in effect from the Original Issue Date to the Initial Interest Reset
Date shall be the Initial Interest Rate; provided further that the Notes will not reset after the Fixed Rate Commencement Date, if any. If any Interest Reset Date would otherwise be a day that is not a Business Day, such Interest Reset
Date shall be postponed to the next day that is a Business Day, except that if the Base Rate specified above is LIBOR, if such Business Day is in the next succeeding calendar month, such Interest Rate Reset Date shall be the immediately preceding
Business Day. If a treasury bill auction will be held on a day that would otherwise be an Interest Reset Date with respect to the Treasury Rate, then such Interest Reset Date shall be the Business Day following such auction date.
The Interest Determination Date with respect to the Federal Funds Rate and the Prime Rate will be the Business Day preceding the Interest
Reset Date. The Interest Determination Date with respect to the Commercial Paper Rate and the CMT Rate will be the second Business Day preceding the Interest Reset Date. The Interest Determination Date with respect to LIBOR shall be the second
London Banking Day (as defined below) preceding an Interest Reset Date. The Interest Determination Date with respect to the Eleventh District Cost of Funds Rate shall be the last Business Day of the month immediately preceding the applicable
Interest Reset Date in which the Federal Home Loan Bank of San Francisco publishes the Index (as hereinafter defined). The Interest Determination Date with respect to the Treasury Rate shall be the day of the week in which such Interest Rate Reset
Date falls on which Treasury bills of the Index Maturity specified above normally would be auctioned; provided, however, that if as a result of a legal holiday an auction is held on the Friday of the week preceding the Interest Rate
Reset Date, the related Interest Determination Date shall be such preceding Friday. The Interest Determination Date with respect to a Note the interest rate of which is determined by two or more Interest Rate Bases shall be the second Business Day
next preceding the applicable Interest Reset Date on which each Base Rate is determinable. Each Base Rate shall be determined as of such date, and the applicable interest rate will take effect on the applicable Interest Reset Date.
-7-
The “Calculation Date” pertaining to any Interest Determination Date shall be the
earlier of (i) the tenth calendar day after such Interest Determination Date or, if such day is not a Business Day, the next succeeding Business Day and (ii) the Business Day next preceding the applicable Interest Payment Date or the date
of Maturity, as the case may be.
All percentages resulting from any calculation on the Notes will be rounded, if necessary, to the
nearest one hundred-thousandth of a percentage point, with five one-millionths of a percentage point rounded upward, and all dollar amounts used in or resulting from such calculation on the Notes will be rounded to the nearest cent (with one-half
cent being rounded upward).
As used herein, “Business Day” means with respect to Notes denominated in U.S. dollars,
(i) any day other than a Saturday, Sunday, legal holiday or other day on which banking institutions in The City of New York are authorized or required by law, regulation or executive order to close; provided that in the case where the Base Rate
is LIBOR, such day is also a London Banking Day. “London Banking Day” means a day on which dealings in the applicable LIBOR currency are transacted in the London interbank market. For Notes having a specified currency other than U.S.
dollars (other than Notes denominated in Euros), “Business Day” means any day that, in the Principal Financial Center (as defined below) of the country of the specified currency, is not a day on which banking institutions generally are
authorized or obligated by law to close; and for Notes denominated in Euros, a day on which the Trans-European Automated Real-time Gross Settlement Express Transfer System is open.
The interest rate that will become effective on each subsequent Interest Reset Date will be determined by the Calculation Agent (calculated
with reference to the Base Rate or Rates and the Spread and/or Spread Multiplier, if any) as follows (such determination, in the absence of manifest error, to be binding upon all parties).
Commercial Paper Rate
“Commercial Paper Rate”
means:
(1) the Money Market Yield (as defined below) on the particular Interest Determination Date of the rate for commercial paper having the Index
Maturity specified in the applicable pricing supplement as published in H.15(519) (as defined below) under the caption “Commercial Paper-Nonfinancial”, or
(2) if the rate referred to in clause (1) is not so published by 3:00 P.M., New York City time, on the related Calculation Date, the Money Market Yield
of the rate on the particular Interest Determination Date for commercial paper having the particular Index Maturity as published in H.15 Daily Update (as defined below), or such other recognized electronic source used for the purpose of displaying
the applicable rate, under the caption “Commercial Paper-Nonfinancial”, or
(3) if the rate referred to
in clause (2) is not so published by 3:00 P.M., New York City time, on the related Calculation Date, the rate on the particular Interest Determination Date calculated by the Calculation Agent as the Money Market Yield of the arithmetic mean of
the offered rates at approximately 11:00 A.M., New York City time, on that Interest Determination Date of three
-8-
leading dealers of United States dollar commercial paper in The City of New York (which may include the Agents or their affiliates) selected by the Company and identified to the Calculation Agent
for commercial paper having the particular Index Maturity placed for industrial issuers whose bond rating is “Aa”, or the equivalent, from a nationally recognized statistical rating organization, or
(4) if the dealers so selected by the Company are not quoting as mentioned in clause (3), the Commercial Paper Rate in effect on the particular Interest
Determination Date.
“Money Market Yield” means a yield (expressed as a percentage) calculated in accordance with the following formula:
|
|
|
|
|
| Money Market Yield = |
|
D x 360 |
|
x 100 |
| |
360 – (D x M) |
|
where “D” refers to the applicable per annum rate for commercial paper quoted on a bank discount basis and expressed
as a decimal, and “M” refers to the actual number of days in the applicable Interest Reset Period (the period between Interest Reset Dates).
“H.15(519)” means the weekly statistical release designated as H.15(519), or any successor publication, published by the Board of Governors of the
Federal Reserve System.
“H.15 Daily Update” means the daily update of H.15(519), available through the world-wide-web site of the Board of Governors of the Federal Reserve System at http://federalreserve.gov/releases/h15/update, or any successor site or publication.
LIBOR
“LIBOR” means:
(1) the arithmetic mean of the offered rates, calculated by the Calculation Agent, or the offered rate, if the LIBOR Page by its terms provides only for a
single rate, for deposits in the LIBOR Currency having the particular Index Maturity, commencing on the related Interest Reset Date, that appear or appears, as the case may be, on the LIBOR Page as of 11:00 A.M., London time, on the particular
Interest Determination Date, or
(2) if no rate appears on the particular Interest Determination Date on the LIBOR Page as specified in clause (1), the
rate calculated by the Calculation Agent of at least two offered quotations obtained by the Calculation Agent after requesting the principal London offices of each of four major reference banks (which may include affiliates of the Agents) selected
by the Company and identified to the Calculation Agent, in the London interbank market to provide the Calculation Agent with its offered quotation for deposits in the LIBOR Currency for the period of the particular Index Maturity, commencing on the
related Interest Reset Date, to prime banks in the London interbank market at approximately 11:00 A.M., London time, on that Interest Determination Date and in a principal amount that is representative, as determined by the Company, for a single
transaction in the LIBOR Currency in that market at that time, or
-9-
(3) if fewer than two offered quotations referred to in clause (2) are provided as requested, the rate
calculated by the Calculation Agent as the arithmetic mean of the rates quoted at approximately 11:00 A.M., in the applicable Principal Financial Center (as defined below), on the particular Interest Determination Date by three major banks (which
may include affiliates of the Agents) selected by the Company and identified to the Calculation Agent, in that Principal Financial Center selected by the Calculation Agent for loans in the LIBOR Currency to leading European banks, having the
particular Index Maturity and in a principal amount that is representative, as determined by the Company, for a single transaction in the LIBOR Currency in that market at that time, or
(4) if the banks so selected by the Company are not quoting as mentioned in clause (3), LIBOR in effect on the particular Interest Determination Date.
“LIBOR Currency” means the currency specified in the applicable pricing supplement as to which LIBOR shall be calculated or, if no currency is
specified in the applicable pricing supplement, United States dollars.
“LIBOR Page” means the display on the Reuters Eikon (or any successor
service) on the “LIBOR01” page (or any other page as may replace such page on such service) for the purpose of displaying the London interbank rates of major banks for the LIBOR Currency; or
“Principal Financial Center” means, as applicable:
| • |
|
the capital city of the country issuing the Specified Currency; |
| • |
|
the capital city of the country to which the LIBOR Currency relates; or |
| • |
|
London if the LIBOR Currency is the Euro; |
provided, however, that with respect to United States
dollars, Australian dollars, Canadian dollars, South African rand and Swiss francs, the “Principal Financial Center” shall be The City of New York, Sydney and (solely in the case of the Specified Currency) Melbourne, Toronto, Johannesburg
and Zurich, respectively.
Federal Funds Rate
“Federal Funds Rate” means:
(1) the rate as of the
particular Interest Determination Date for United States dollar federal funds as published in H.15(519) under the caption “Federal Funds (Effective)” and displayed on Reuters Monitor Money Rates Service (or any successor service) on page
FEDFUNDS1 (or any other page as may replace the specified page on that service) (“Reuters Page FEDFUNDS1”), or
(2) if the rate referred to in
clause (1) does not so appear on Reuters Page FEDFUNDS1 or is not so published by 3:00 P.M., New York City time, on the related Calculation Date, the rate as of the particular Interest Determination Date for United States dollar federal funds
as published in H.15 Daily Update, or such other recognized electronic source used for the purpose of displaying the applicable rate, under the caption “Federal Funds (Effective)”, or
(3) if the rate referred to in clause (2) is not so published by 3:00 P.M., New York City time, on
-10-
the related Calculation Date, the rate with respect to the particular Interest Determination Date calculated by the Calculation Agent as the arithmetic mean of the rates for the last transaction
in overnight United States dollar federal funds arranged by three leading brokers of United States dollar federal funds transactions in The City of New York (which may include the Agents or their affiliates), selected by the Company and identified
to the Calculation Agent prior to 9:00 A.M., New York City time, on the Business Day following that Interest Determination Date, or
(4) if the brokers so
selected by the Company are not quoting as mentioned in clause (3), the Federal Funds Rate in effect on the particular Interest Determination Date.
Prime Rate
“Prime Rate” means:
(1) the rate on the particular Interest Determination Date as published in H.15(519) under the caption “Bank Prime Loan”, or
(2) if the rate referred to in clause (1) is not so published by 3:00 P.M., New York City time, on the related Calculation Date, the rate on the
particular Interest Determination Date as published in H.15 Daily Update, or such other recognized electronic source used for the purpose of displaying the applicable rate, under the caption “Bank Prime Loan”, or
(3) if the rate referred to in clause (2) is not so published by 3:00 P.M., New York City time, on the related Calculation Date, the rate on the
particular Interest Determination Date calculated by the Calculation Agent as the arithmetic mean of the rates of interest publicly announced by each bank that appears on the Reuters Screen US PRIME 1 Page (as defined below) as the applicable
bank’s prime rate or base lending rate as of 11:00 A.M., New York City time, on that Interest Determination Date, or
(4) if fewer than four rates
referred to in clause (3) are so published by 3:00 p.m., New York City time, on the related Calculation Date, the rate on the particular Interest Determination Date calculated by the Calculation Agent as the arithmetic mean of the prime rates
or base lending rates quoted on the basis of the actual number of days in the year divided by a 360-day year as of the close of business on that Interest Determination Date by three major banks (which may include affiliates of the Agents) in The
City of New York selected by the Company and identified to the Calculation Agent, or
(5) if the banks so selected by the Company are not quoting as
mentioned in clause (4), the Prime Rate in effect on the particular Interest Determination Date.
“Reuters Screen US PRIME 1 Page” means the
display on the Reuters Monitor Money Rates Service (or any successor service) on the “US PRIME 1” page (or any other page as may replace that page on that service) for the purpose of displaying prime rates or base lending rates of major
United States banks.
-11-
Treasury Rate
“Treasury Rate” means:
(1) the rate from the auction
held on the Treasury Rate Note Interest Determination Date (the “Auction”) of direct obligations of the United States (“Treasury Bills”) having the Index Maturity specified in the applicable pricing supplement under the caption
“INVESTMENT RATE” on the display on Reuters Monitor Money Rates Service (or any successor service) on page USAUCTION 10/11 (or any other page as may replace that page on that service) (“Reuters Page USAUCTION 10/11”), or
(2) if the rate referred to in clause (1) is not so published by 3:00 P.M., New York City time, on the related Calculation Date, the Bond Equivalent
Yield (as defined below) of the rate for the applicable Treasury bills as published in H.15 Daily Update, or another recognized electronic source used for the purpose of displaying the applicable rate, under the caption “U.S. Government
Securities/Treasury Bills/Auction High”, or
(3) if the rate referred to in clause (2) is not so published by 3:00 P.M., New York City time, on
the related Calculation Date, the Bond Equivalent Yield of the auction rate of the applicable Treasury bills as announced by the United States Department of the Treasury, or
(4) if the rate referred to in clause (3) is not so announced by the United States Department of the Treasury, or if the Auction is not held, the Bond
Equivalent Yield of the rate on the particular Interest Determination Date of the applicable Treasury bills as published in H.15(519) under the caption “U.S. Government Securities/Treasury Bills/Secondary Market”, or
(5) if the rate referred to in clause (4) not so published by 3:00 P.M., New York City time, on the related Calculation Date, the rate on the particular
Interest Determination Date of the applicable Treasury bills as published in H.15 Daily Update, or another recognized electronic source used for the purpose of displaying the applicable rate selected by the Company, under the caption “U.S.
Government Securities/Treasury Bills/Secondary Market”, or
(6) if the rate referred to in clause (5) is not so published by 3:00 P.M., New York
City time, on the related Calculation Date, the rate on the particular Interest Determination Date calculated by the Calculation Agent as the Bond Equivalent Yield of the arithmetic mean of the secondary market bid rates, as of approximately 3:30
P.M., New York City time, on that Interest Determination Date, of three primary United States government securities dealers (which may include the Agents or their affiliates) selected by the Company and identified to the Calculation Agent, for the
issue of Treasury bills with a remaining maturity closest to the Index Maturity specified in the applicable pricing supplement, or
(7) if the dealers so
selected by the Company are not quoting as mentioned in clause (6), the Treasury Rate in effect on the particular Interest Determination Date.
“Bond
Equivalent Yield” means a yield (expressed as a percentage) calculated in accordance with the following formula:
|
|
|
|
|
| Bond Equivalent Yield = |
|
D x N |
|
x 100 |
| |
360 – (D x M) |
|
-12-
where “D” refers to the applicable per annum rate for Treasury bills quoted on a bank discount basis
and expressed as a decimal, “N” refers to 365 or 366, as the case may be, and “M” refers to the actual number of days in the applicable Interest Reset Period.
CMT Rate
“CMT Rate” means:
| (1) |
if CMT Reuters Page FRBCMT is specified in the applicable pricing supplement: |
(a) the
percentage equal to the yield for United States Treasury securities at “constant maturity” having the Index Maturity specified in the applicable pricing supplement as published in H.15(519) under the caption “Treasury Constant
Maturities”, as the yield is displayed on Reuters Monitor Money Rates Service (or any successor service) on page FRBCMT (or any other page as may replace the specified page on that service) (“Reuters Page FRBCMT”), for the particular
Interest Determination Date, or
(b) if the rate referred to in clause (a) does not so appear on Reuters Page FRBCMT, the percentage
equal to the yield for United States Treasury securities at “constant maturity” having the particular Index Maturity and for the particular Interest Determination Date as published in H.15(519) under the caption “Treasury Constant
Maturities”, or
(c) if the rate referred to in clause (b) does not so appear in H.15(519), the rate on the particular Interest
Determination Date for the period of the particular Index Maturity as may then be published by either the Federal Reserve System Board of Governors or the United States Department of the Treasury that the Company determines to be comparable to the
rate which would otherwise have been published in H.15(519), or
(d) if the rate referred to in clause (c) is not so published, the
rate on the particular Interest Determination Date calculated by the Calculation Agent as a yield to maturity based on the arithmetic mean of the secondary market bid prices at approximately 3:30 P.M., New York City time, on that Interest
Determination Date of three leading primary United States government securities dealers in The City of New York (which may include the Agents or their affiliates) (each, a “Reference Dealer”), selected by the Company and identified to the
Calculation Agent from five Reference Dealers selected by the Company and eliminating the highest quotation, or, in the event of equality, one of the highest, and the lowest quotation or, in the event of equality, one of the lowest, for United
States Treasury securities with an original maturity equal to the particular Index Maturity, a remaining term to maturity no more than 1 year shorter than that Index Maturity and in a principal amount of at least $100,000,000, or
(e) if fewer than five but more than two of the prices referred to in clause (d) are provided as requested, the rate on the particular
Interest Determination Date calculated by the Calculation Agent based on the arithmetic mean of the bid prices obtained and neither the highest nor the lowest of the quotations shall be eliminated, or
-13-
(f) if fewer than three prices referred to in clause (d) are provided as requested, the rate
on the particular Interest Determination Date calculated by the Calculation Agent as a yield to maturity based on the arithmetic mean of the secondary market bid prices as of approximately 3:30 P.M., New York City time, on that Interest
Determination Date of three Reference Dealers selected by the Company and identified to the Calculation Agent from five Reference Dealers selected by the Company and eliminating the highest quotation or, in the event of equality, one of the highest
and the lowest quotation or, in the event of equality, one of the lowest, for United States Treasury securities with an original maturity greater than the particular Index Maturity, a remaining term to maturity closest to that Index Maturity and in
a principal amount of at least $100,000,000, or
(g) if fewer than five but more than two prices referred to in clause (f) are
provided as requested, the rate on the particular Interest Determination Date calculated by the Calculation Agent based on the arithmetic mean of the bid prices obtained and neither the highest nor the lowest of the quotations will be eliminated, or
(h) if fewer than three prices referred to in clause (f) are provided as requested, the CMT Rate in effect on the particular Interest
Determination Date.
| (2) |
if CMT Reuters Page FEDCMT is specified in the applicable pricing supplement: |
(a) the
percentage equal to the one-week or one-month, as specified in the applicable pricing supplement, average yield for United States Treasury securities at “constant maturity” having the Index Maturity specified in the applicable pricing
supplement as published in H.15(519) opposite the caption “Treasury Constant Maturities”, as the yield is displayed on Reuters Monitor Money Rates Service (or any successor service) (on page FEDCMT or any other page as may replace the
specified page on that service) (“Reuters Page FEDCMT “), for the week or month, as applicable, ended immediately preceding the week or month, as applicable, in which the particular Interest Determination Date falls, or
(b) if the rate referred to in clause (a) does not so appear on Reuters Page FEDCMT, the percentage equal to the one-week or one-month, as
specified in the applicable pricing supplement, average yield for United States Treasury securities at “constant maturity” having the particular Index Maturity and for the week or month, as applicable, preceding the particular Interest
Determination Date as published in H.15(519) opposite the caption “Treasury Constant Maturities,” or
(c) if the rate referred to
in clause (b) does not so appear in H.15(519), the one-week or one-month, as specified in the applicable pricing supplement, average yield for United States Treasury securities at “constant maturity” having the particular Index
Maturity as otherwise announced by the Federal Reserve Bank of New York for the week or month, as applicable, ended immediately preceding the week or month, as applicable, in which the particular Interest Determination Date falls, or
(d) if the rate referred to in clause (c) is not so published, the rate on the particular Interest Determination Date calculated by the
Calculation Agent as a yield to maturity based on the arithmetic mean of the secondary market bid prices at approximately 3:30 P.M., New York
-14-
City time, on that Interest Determination Date of three Reference Dealers selected by the Company and identified to the Calculation Agent from five Reference Dealers selected by the Company and
eliminating the highest quotation, or, in the event of equality, one of the highest, and the lowest quotation or, in the event of equality, one of the lowest, for United States Treasury securities with an original maturity equal to the particular
Index Maturity, a remaining term to maturity no more than 1 year shorter than that Index Maturity and in a principal amount of at least $100,000,000, or
(e) if fewer than five but more than two of the prices referred to in clause (d) are provided as requested, the rate on the particular
Interest Determination Date calculated by the Calculation Agent based on the arithmetic mean of the bid prices obtained and neither the highest nor the lowest of the quotations shall be eliminated, or
(f) if fewer than three prices referred to in clause (d) are provided as requested, the rate on the particular Interest Determination Date
calculated by the Calculation Agent as a yield to maturity based on the arithmetic mean of the secondary market bid prices as of approximately 3:30 P.M., New York City time, on that Interest Determination Date of three Reference Dealers
selected by the Company and identified to the Calculation Agent from five Reference Dealers selected by the Company and eliminating the highest quotation or, in the event of equality, one of the highest and the lowest quotation or, in the event of
equality, one of the lowest, for United States Treasury securities with an original maturity greater than the particular Index Maturity, a remaining term to maturity closest to that Index Maturity and in a principal amount of at least $100,000,000,
or
(g) if fewer than five but more than two prices referred to in clause (f) are provided as requested, the rate on the particular
Interest Determination Date calculated by the Calculation Agent based on the arithmetic mean of the bid prices obtained and neither the highest or the lowest of the quotations will be eliminated, or
(h) if fewer than three prices referred to in clause (f) are provided as requested, the CMT Rate in effect on that Interest Determination
Date.
If two United States Treasury securities with an original maturity greater than the Index Maturity specified in the applicable
pricing supplement have remaining terms to maturity equally close to the particular Index Maturity, the quotes for the United States Treasury security with the shorter original remaining term to maturity will be used.
Eleventh District Cost of Funds Rate
“Eleventh
District Cost of Funds Rate” means:
(1) the rate equal to the monthly weighted average cost of funds for the calendar month immediately preceding
the month in which the particular Interest Determination Date falls as set forth under the caption “11th Dist COFI:” on the display on Reuters on page COFI/ARMS (or any other page as may replace such page on such service) (“Reuters
Page COFI/ARMS”) as of 11:00 A.M., San Francisco time, on such Interest Determination Date, or
-15-
(2) if the rate referred to in clause (1) does not so appear on Reuters Page COFI/ARMS, the monthly weighted
average cost of funds paid by member institutions of the Eleventh Federal Home Loan Bank District that was most recently announced (the “Index”) by the Federal Home Loan Bank of San Francisco as the cost of funds for the calendar month
immediately preceding that Interest Determination Date, or
(3) if the Federal Home Loan Bank of San Francisco fails to announce the Index on or prior to
the particular Interest Determination Date for the calendar month immediately preceding that Interest Determination Date, the Eleventh District Cost of Funds Rate in effect on the particular Interest Determination Date.
Notwithstanding the foregoing, the interest rate hereon shall not be greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any. The Calculation Agent shall calculate the interest rate hereon in accordance with the foregoing on or before each Calculation Date. The interest rate on this Note will in no event be higher than the maximum rate permitted by
New York law, as the same may be modified by United States law of general application.
At the request of the Holder hereof, the
Calculation Agent will provide to the Holder hereof the interest rate hereon then in effect and, if determined, the interest rate which will become effective on the next Interest Reset Date.
The “Amortized Face Amount” of an Original Issue Discount Note shall be the amount equal to (i) the Issue Price set forth above
plus (ii) that portion of the difference between the Issue Price and the principal amount of such Note that has accrued at the Original Yield to Maturity (computed in accordance with generally accepted United States bond yield computation
principles) by the date of redemption or repayment, as calculated by an agent appointed by the Company, but in no event shall the Amortized Face Amount of an Original Issue Discount Note exceed its principal amount.
If an Event of Default with respect to the Notes shall occur and be continuing, the principal of the Notes may be declared due and payable in
the manner and with the effect provided in the Indenture.
[Insert if this Note is a Senior Subordinated Medium-Term Note – The
indebtedness evidenced by this Security is, to the extent provided in the Indenture, subordinate and subject in right of payment to the prior payment in full of all Senior Indebtedness, and this Security is issued subject to the provisions of the
Indenture with respect thereto. Each Holder of this Security, by accepting the same, (a) agrees to and shall be bound by the provisions of the Indenture, (b) authorizes and directs the Trustee on his or her behalf to take such actions as
may be necessary or appropriate to effectuate the subordination so provided and (c) appoints the Trustee his or her attorney-in-fact for any and all such purposes. Each Holder hereof, by his or her acceptance hereof, waives all notice of the
acceptance of the subordination provisions contained herein and in the Indenture by each holder of Senior Indebtedness, whether now outstanding or hereafter created, incurred, assumed or guaranteed, and waives reliance by each such holder upon said
provisions.]
[Insert if this Note is a Senior Subordinated Medium-Term Note – Payment of principal on the Securities may be
accelerated only in the case of certain events involving the bankruptcy, insolvency or reorganization of the Company. There is no right of acceleration in the case of a
-16-
default in the performance of any covenant of the Company, including the payment of principal or interest. In case a Default with respect to this Security shall occur and be continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the rights of the holders of the Securities through appropriate judicial proceedings. The Indenture defines a Default to include, without limitation, default in the payment
of principal of these Securities when due and default for 30 days in any payment of interest on any Security of this series.]
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 the Holders of not less than a majority in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding to be affected under the Indenture, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with
certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note
and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.
[Insert if this Note is a Senior Subordinated Medium-Term Note – 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 this Security 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 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 Default as Trustee and offered the Trustee indemnity or security reasonably satisfactory to the Trustee, 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 or security. The
foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof (and premium, if any, hereon) or interest hereon on or after the respective due dates expressed herein.]
[Insert if this Note is a Senior Medium-Term Note – 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 this Security 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 (and premium, if any, hereon) or interest hereon on or after the respective due dates expressed herein.]
-17-
If so provided pursuant to the terms of any specific Securities, the above-referenced provisions
of the Indenture regarding the ability of Holders to waive certain defaults, or to request the Trustee to institute proceedings (or to give the Trustee other directions) in respect thereof, may be applied differently with regard to such Securities.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and premium, if any, on) and interest on this Note, at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture, and subject to certain limitations therein set forth, the transfer of this Note may be registered on the
Security Register of the Company upon surrender of this Note for registration of transfer at the office or agency of the Company in any place where the principal of and premium, if any, on and interest on this Note are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar, duly executed by the Holder hereof or by such Holder’s attorney duly authorized in writing and thereupon one or more new Notes and
of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in denominations of $[1,000][Insert other minimum denomination] or any amount
in excess thereof which is an integral multiple of $[1,000][Insert other minimum denomination] and, unless otherwise specified on the face hereof, shall be denominated in U.S. dollars. As provided in the Indenture, and subject to certain limitations
therein set forth, the Notes are exchangeable for a like aggregate principal amount of Notes and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge will 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 Note 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 Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of (and
premium, if any) or the interest on this Note, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture or any indenture supplemental thereto, against any incorporator, shareholder, officer or
director, as such, past, present or future, of the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released.
-18-
The Indenture and the Notes shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed in such State.
Under the Indenture, the Company, the Trustee and the
holder of the Note waive, to the fullest extent permitted by law, any right to a trial by jury in any proceeding relating to the Notes.
All terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Except to the extent specified in this Note pursuant to Section 301 of the Indenture, in the event of any inconsistency between the
Indenture and this Note, the provisions of the Indenture shall govern.
Unless the Certificate of Authentication hereon has been executed
by the Authenticating Agent under the Indenture by the manual signature of one of its authorized officers, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
-19-
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or in
facsimile, and its corporate seal to be imprinted hereon.
|
|
|
| Dated: |
|
| THE BANK OF NEW YORK MELLON CORPORATION |
|
|
| By: |
|
|
[SEAL]
|
|
|
| CERTIFICATE OF AUTHENTICATION: |
|
| This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture. |
|
|
| By: |
|
The Bank of New York Mellon As Authenticating
Agent |
|
|
| By: |
|
|
|
|
Authorized Officer |
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Company to repay this Note (or portion hereof specified below) pursuant to
its terms at a price equal to the principal amount hereof together with interest to the repayment date, to the undersigned, at
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, this Note must be received at the corporate trust office of The Bank of New York Mellon, in The City of New York,
or at such other place or places which the Company shall from time to time notify the Holder of this Note, not less than 10 nor more than 60 days prior to the Holder’s Optional Repayment Date, if any, specified above, with this “Option to
Elect Repayment” form duly completed. Exercise of such repayment option by the holder hereof shall be irrevocable. In the event of repayment of this Note in part only, a new Note or Notes for the amount of the unpaid portion hereof shall be
issued in the name of the Holder hereof upon the cancellation hereof.
If less than the entire principal amount of this Note is to be
repaid, specify the portion hereof (which shall be in increments of $[1,000][Insert other minimum denomination]) which the Holder elects to have repaid and specify the denomination or denominations (each of which shall be $[1,000][Insert other
minimum denomination] or an integral multiple of $[1,000][Insert other minimum denomination] in excess of $[1,000][Insert other minimum denomination]) of the Notes to be issued to the Holder for the portion of this Note not being repaid (in the
absence of any such specification, one such Note will be issued for the portion not being repaid).
NOTICE: The signature on this Option to Elect Repayment must correspond with the name as written upon the face of this Note in
every particular, without alteration or enlargement or any change whatever.
-21-
ABBREVIATIONS
The following abbreviations, when used in the inscription on this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations.
|
| TEN COM—as tenants in common |
UNIF GIFT MIN ACT- Custodian
(Minor)
|
|
|
|
|
| Under Uniform Gifts to Minors Act |
|
|
|
|
|
|
(State) |
|
|
TEN ENT—as tenants by the entireties
JT TEN—as joint tenants with right of survivorship and not as tenants in common
Additional abbreviations may also be used though not in the above list.
-22-
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
Please Insert Social Security or Other Identifying Number of Assignee:
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS
INCLUDING ZIP CODE OF ASSIGNEE:
the within Note and all rights thereunder, and does hereby irrevocably constitute and appoint
attorney
to transfer said Note on the books of the Company, with full power of substitution in the premises.
NOTICE: The signature(s) to this assignment must correspond with the name as written upon the within instrument in every
particular, without alteration or enlargement, or any change whatever.
NOTICE: The signature(s) must be guaranteed by an eligible guarantor institution (e.g., banks, securities brokers or
dealers, credit unions, national securities exchanges and savings associations) which is a member of or participant in a signature guarantee program recognized by the Securities Registrar pursuant to Rule 17Ad-15 under the Securities Exchange Act of
1934.
-23-
Exhibit 4.19
THE BANK OF NEW YORK MELLON CORPORATION
Officers’ Certificate Pursuant to
Sections 201 and 301 of the
Senior Indenture
Pursuant to resolutions of the Board of Directors (the “Board”), dated December 8, 2015 (the “Resolutions”), of The Bank of New York Mellon Corporation (the “Company”), and
an Action, dated February 9, 2016 (the “Action”), of an Authorized Officer (as defined in the Resolutions) of the Company pursuant to the Resolutions and Sections 201 and 301 of the Senior Indenture, dated as of February 9, 2016, as
supplemented from time to time (the “Senior Indenture”), between the Company and Deutsche Bank Trust Company Americas, as trustee (the “Trustee”), the undersigned certify that the terms of a Series of Securities established
pursuant to the Resolutions, the Action and Section 301 of the Senior Indenture shall be as follows (capitalized terms not defined herein shall have the meanings assigned to them in the Senior Indenture or the Prospectus, dated February 9,
2016, as supplemented by the Prospectus Supplement relating to the Notes referred to below, dated February 9, 2016):
(1) The
title of the Securities of such Series is “Senior Medium-Term Notes Series I” (the “Notes”).
(2) The
aggregate principal amount of Notes that may be authenticated and delivered under the Senior Indenture shall be unlimited; provided that the aggregate principal amount of the Notes that may be authenticated and delivered shall not exceed the
aggregate amount of debt that the Board has authorized the Company to issue and sell (which, for the avoidance of doubt, shall include any amount or amounts authorized by the Board after the date hereof), taking into account any issuances and sales
of debt other than the Notes by the Company, or any issuances and sales of debt by any subsidiary of the Company, in each case, that have the effect of reducing the Company’s capacity to issue and sell Notes under the resolutions adopted by the
Board from time to time.
(3) Each issue of Notes shall mature, and the principal amount thereof shall be payable as
set forth, from time to time, in the Global Note (as defined below) evidencing such issue of Notes.
(4) The rate at which
each issue of Notes shall bear interest shall be as set forth, from time to time, in the applicable Global Note evidencing such issue of Notes. The date from which each issue of Notes shall bear interest and the dates and basis upon which interest
will be paid on each issue of Notes shall be as set forth, from time to time, in the applicable Global Note evidencing such issue of Notes. Interest shall be payable to the person in whose name a Note (or any Predecessor Security, as defined in the
Senior Indenture) is registered at the close of business on the “Regular Record Date”, as specified in the applicable Global Note evidencing each issue of Notes; provided that interest payable at maturity or upon earlier redemption
or repayment will be payable to the person to whom principal shall be payable.
(5) Whether, and the period or periods within
which, price or prices at which and terms and conditions, if any, upon which, any issue of Notes may be redeemed by the Company prior to Maturity shall be set forth in the Global Note evidencing such issue of Notes. Any election by the Company to
redeem any issue of Notes shall be evidenced by an Officers’ Certificate.
(6) Whether, and the period or periods within
which, price or prices at which and terms and conditions, if any, upon which, any of issue of Notes will be subject to the right of the Holder thereof to elect to require the Company to repurchase such Notes shall be set forth in the Global Note
evidencing such issue of Notes.
-2-
(7) Whether any issue of Notes will have the benefit of any sinking fund shall be set forth
in the Global Note evidencing such issue of Notes.
(8) The principal of (and premium, if any, on) and interest, if any, on
each issue of Notes shall be payable in the currency of the United States of America, unless otherwise set forth in the Pricing Supplement or Terms Agreement applicable to such issue of Notes and the Global Note evidencing such issue of Notes. If
other than the currency of the United States of America, the currency, currencies, composite currency, composite currencies, or currency units in which the principal of (or premium, if any, on) or interest, if any, on any issue of Notes shall be
payable, and the manner of determining the equivalent thereof in the currency of the United States of America for any purpose, shall be set forth in the Global Note evidencing such issue of Notes.
(9) Each issue of Notes will be subject to Section 1302 and 1303 of the Senior Indenture unless otherwise set forth in the Pricing
Supplement or Terms Agreement applicable to such issue of Notes and the Global Note evidencing such issue of Notes. Any election by the Company to apply Section 1302 and/or Section 1303 of the Senior Indenture to any issue of Notes shall be
evidenced by an Officers’ Certificate.
(10) The Events of Default set forth in Article Five of the Senior Indenture will
apply to each issue of Notes unless otherwise set forth in the Pricing Supplement or Terms Agreement applicable to such issue of Notes and the Global Note evidencing such issue of Notes, in which case any addition to, elimination of or other change
in the Events of Default that apply to such issue of Notes, and any change in the right of the Trustee or the requisite Holders of such Notes to declare the principal amount thereof due and payable, shall be set forth in the Global Note evidencing
such issue of Notes.
-3-
(11) The covenants set forth in Article Ten of the Senior Indenture will apply to each issue
of Notes unless otherwise set forth in the Pricing Supplement or Terms Agreement applicable to such issue of Notes and the Global Note evidencing such issue of Notes, in which case any addition to, elimination of or other change in the covenants
that apply to such issue of Notes shall be set forth in the Global Note evidencing such issue of Notes.
(12) Each issue of
Notes shall be issued initially in the form of one or more permanent Global Notes (collectively, the “Global Note”) and the Depositary for such Global Note shall initially be The Depository Trust Company (the “Depositary”).
Except as otherwise set forth herein, in the Senior Indenture or in the applicable Global Note for any issue of Notes, owners
of beneficial interests in such Notes evidenced by such Global Note will not be entitled to any rights under the Senior Indenture with respect to such Global Note, and the Depositary may be treated by the Company, the Trustee, and any agent of the
Company or the Trustee as the owner of the Global Note for all purposes whatsoever.
The Depositary shall be a clearing agency
registered under the Exchange Act. Initially, the Global Note shall be issued to the Depositary and registered in the name of Cede & Co., as the nominee of the Depositary and deposited with The Bank of New York Mellon as Custodian for the
Depositary.
(13) In accordance with Section 303 of the Indenture, the Company may, by Company Order, establish procedures for
the issuance of Notes and evidencing the determination of the terms of each issue of Notes.
(14) The Notes will be
substantially in the form of Annex A attached hereto, with such modifications thereto as may be approved by an Authorized Officer (as defined in the Resolutions), such approval to be conclusively evidenced by the execution
by such Authorized Officer of such Notes.
-4-
IN WITNESS WHEREOF, the undersigned, hereto duly authorized, have duly signed, and delivered
or caused to be delivered to the Trustee and the Authenticating Agent under the Senior Indenture, this Officers’ Certificate.
Dated: February 9, 2016
|
|
|
| By: |
|
/s/ Kurtis R. Kurimsky |
|
|
Kurtis R. Kurimsky |
|
|
Controller |
|
|
| By: |
|
/s/ Scott Freidenrich |
|
|
Scott Freidenrich |
|
|
Executive Vice President and Treasurer |
Signature
Page to Officers’ Certificate (Pursuant to Sections 201 and 301 of the Senior Indenture)
Annex A
Exhibit 4.20
THE BANK OF NEW YORK MELLON CORPORATION
Officers’ Certificate
Pursuant to
Sections 201 and 301 of the
Senior Subordinated Indenture
Pursuant to resolutions of the Board
of Directors (the “Board”), dated December 8, 2015 (the “Resolutions”), of The Bank of New York Mellon Corporation (the “Company”), and an Action, dated February 9, 2016 (the “Action”), of an Authorized
Officer (as defined in the Resolutions) of the Company pursuant to the Resolutions and Sections 201 and 301 of the Senior Subordinated Indenture, dated as of February 9, 2016, as supplemented from time to time (the “Senior Subordinated
Indenture”), between the Company and Wilmington Trust, National Association, as trustee (the “Trustee”), the undersigned certify that the terms of a Series of Securities established pursuant to the Resolutions, the Action and
Section 301 of the Senior Subordinated Indenture shall be as follows (capitalized terms not defined herein shall have the meanings assigned to them in the Senior Subordinated Indenture or the Prospectus, dated February 9, 2016, as supplemented
by the Prospectus Supplement relating to the Notes referred to below, dated February 9, 2016):
(1) The title of the
Securities of such Series is “Senior Subordinated Medium-Term Notes Series J” (the “Notes”).
(2) The
aggregate principal amount of Notes that may be authenticated and delivered under the Senior Subordinated Indenture shall be unlimited; provided that the aggregate principal amount of the Notes that may be authenticated and delivered shall
not exceed the aggregate amount of debt that the Board has authorized the Company to issue and sell (which, for the avoidance of doubt, shall include any amount or amounts authorized by the Board after the date hereof), taking into account any
issuances and sales of debt other than the Notes by the
-1-
Company, or any issuances and sales of debt by any subsidiary of the Company, in each case, that have the effect of reducing the Company’s capacity to issue and sell Notes under the
resolutions adopted by the Board from time to time.
(3) Each issue of Notes shall mature, and the principal amount thereof
shall be payable as set forth, from time to time, in the Global Note (as defined below) evidencing such issue of Notes.
(4)
The rate at which each issue of Notes shall bear interest shall be as set forth, from time to time, in the applicable Global Note evidencing such issue of Notes. The date from which each issue of Notes shall bear interest and the dates and basis
upon which interest will be paid on each issue of Notes shall be as set forth, from time to time, in the applicable Global Note evidencing such issue of Notes. Interest shall be payable to the person in whose name a Note (or any Predecessor
Security, as defined in the Senior Subordinated Indenture) is registered at the close of business on the “Regular Record Date”, as specified in the applicable Global Note evidencing each issue of Notes; provided that interest
payable at maturity or upon earlier redemption or repayment will be payable to the person to whom principal shall be payable.
(5) Whether, and the period or periods within which, price or prices at which and terms and conditions, if any, upon which, any issue of
Notes may be redeemed by the Company prior to Maturity shall be set forth in the Global Note evidencing such issue of Notes. Any election by the Company to redeem any issue of Notes shall be evidenced by an Officers’ Certificate.
(6) Whether, and the period or periods within which, price or prices at which and terms and conditions, if any, upon which, any of issue
of Notes will be subject to the right of the Holder thereof to elect to require the Company to repurchase such Notes shall be set forth in the Global Note evidencing such issue of Notes.
-2-
(7) Whether any issue of Notes will have the benefit of any sinking fund shall be set forth
in the Global Note evidencing such issue of Notes.
(8) The principal of (and premium, if any, on) and interest, if any, on
each issue of Notes shall be payable in the currency of the United States of America, unless otherwise set forth in the Pricing Supplement or Terms Agreement applicable to such issue of Notes and the Global Note evidencing such issue of Notes. If
other than the currency of the United States of America, the currency, currencies, composite currency, composite currencies, or currency units in which the principal of (or premium, if any, on) or interest, if any, on any issue of Notes shall be
payable, and the manner of determining the equivalent thereof in the currency of the United States of America for any purpose, shall be set forth in the Global Note evidencing such issue of Notes.
(9) Each issue of Notes will be subject to Section 1402 and 1403 of the Senior Subordinated Indenture unless otherwise set forth in the
Pricing Supplement or Terms Agreement applicable to such issue of Notes and the Global Note evidencing such issue of Notes. Any election by the Company to apply Section 1402 and/or Section 1403 of the Senior Subordinated Indenture to any issue of
Notes shall be evidenced by an Officers’ Certificate.
(10) The Events of Default and Defaults set forth in Article Five
of the Senior Subordinated Indenture will apply to each issue of Notes unless otherwise set forth in the Pricing Supplement or Terms Agreement applicable to such issue of Notes and the Global Note evidencing such issue of Notes, in which case any
addition to, elimination of or other change in the Events of Default or Defaults that apply to such issue of Notes, and any change in the acceleration provisions in Section 502 of the Senior Subordinated Indenture, shall be set forth in the Global
Note evidencing such issue of Notes.
-3-
(11) The covenants set forth in Article Ten of the Senior Subordinated Indenture will apply
to each issue of Notes unless otherwise set forth in the Pricing Supplement or Terms Agreement applicable to such issue of Notes and the Global Note evidencing such issue of Notes, in which case any addition to, elimination of or other change in the
covenants that apply to such issue of Notes shall be set forth in the Global Note evidencing such issue of Notes.
(12) Each
issue of Notes shall be issued initially in the form of one or more permanent Global Notes (collectively, the “Global Note”) and the Depositary for such Global Note shall initially be The Depository Trust Company (the
“Depositary”).
Except as otherwise set forth herein, in the Senior Subordinated Indenture or in the applicable
Global Note for any issue of Notes, owners of beneficial interests in such Notes evidenced by such Global Note will not be entitled to any rights under the Senior Subordinated Indenture with respect to such Global Note, and the Depositary may be
treated by the Company, the Trustee, and any agent of the Company or the Trustee as the owner of the Global Note for all purposes whatsoever.
The Depositary shall be a clearing agency registered under the Exchange Act. Initially, the Global Note shall be issued to the Depositary and registered in the name of Cede & Co., as the nominee
of the Depositary and deposited with The Bank of New York Mellon as Custodian for the Depositary.
(13) In accordance with
Section 303 of the Indenture, the Company may, by Company Order, establish procedures for the issuance of Notes and evidencing the determination of the terms of each issue of Notes.
-4-
(14) The Notes will be substantially in the form of Annex A
attached hereto, with such modifications thereto as may be approved by an Authorized Officer (as defined in the Resolutions), such approval to be conclusively evidenced by the execution by such Authorized Officer of such Notes.
-5-
IN WITNESS WHEREOF, the undersigned, hereto duly authorized, have duly signed, and delivered
or caused to be delivered to the Trustee and the Authenticating Agent under the Senior Subordinated Indenture, this Officers’ Certificate.
Dated: February 9, 2016
|
|
|
| By: |
|
/s/ Kurtis R. Kurimsky |
|
|
Kurtis R. Kurimsky |
|
|
Controller |
|
|
| By: |
|
/s/ Scott Freidenrich |
|
|
Scott Freidenrich |
|
|
Executive Vice President and Treasurer |
Signature Page to Officers’ Certificate (Pursuant to Sections 201 and 301 of the Senior
Subordinated Indenture)
Annex A
Exhibit 5.1
[Letterhead of BNYM Corporation]
February 9, 2016
The Bank of New York Mellon Corporation,
225 Liberty Street,
New York, NY 10286.
Ladies and Gentlemen:
This opinion is being furnished to you in connection with the filing on the date hereof with the Securities and Exchange Commission (the “Commission”) of a Registration Statement on Form S-3
(the “Registration Statement”), including the prospectus that is part of the Registration Statement (the “Prospectus”), under the Securities Act of 1933, as amended (the “Act”), by The Bank of New York Mellon
Corporation, a Delaware corporation (the “Company”). The Registration Statement registers the following securities of the Company under the Act:
| |
• |
|
senior and senior subordinated debt securities of the Company (the “Debt Securities”); |
| |
• |
|
common stock of the Company, par value $0.01 per share (the “Common Stock”), including shares of Common Stock initially issuable upon
settlement of Stock Purchase Contracts or conversion, exercise or exchange of any Debt Securities, Preferred Stock, Stock Purchase Units or Warrants that are convertible into, or exercisable or exchangeable for, Common Stock;
|
| |
• |
|
preferred stock of the Company, par value $0.01 per share (the “Preferred Stock”), including shares of Preferred Stock initially issuable
upon settlement of Stock Purchase Contracts or conversion, exercise or exchange of any Depositary Shares, Debt Securities, Stock Purchase Units or Warrants that are convertible into, or exercisable or exchangeable for, Preferred Stock;
|
| |
• |
|
depositary shares of the Company (the “Depositary Shares”), evidenced by depositary receipts (the “Depositary Receipts”)
representing fractional shares of Preferred Stock, including Depositary Shares initially issuable upon settlement of Stock Purchase Contracts or conversion, exercise or exchange of any Stock Purchase Units or Warrants that are convertible into, or
exercisable or exchangeable for, Depositary Shares; |
| |
• |
|
warrants to purchase Depositary Shares, Debt Securities, Common Stock or Preferred Stock of the Company (the “Warrants”);
|
| |
• |
|
stock purchase contracts to purchase a specified number of shares of Common Stock, Depositary Shares or Preferred Stock of the Company at a future date
or dates (the “Stock Purchase Contracts”); and |
| |
• |
|
units consisting of an interest in Debt Securities, Warrants or Stock Purchase Contracts, or debt obligations of third parties, including U.S. Treasury
securities, securing the holders’ obligations to purchase the Common Stock, Depositary Shares or Preferred Stock under the Stock Purchase Contracts (the “Stock Purchase Units”). |
The Debt Securities, the Common Stock, the Preferred Stock, the Depositary Shares, the Stock Purchase Contracts, the Stock Purchase Units, and the
Warrants are referred to herein collectively as the “Securities.”
I have acted as counsel for the Company in
connection with the proposed issue and sale of the Securities. I, as counsel for the Company, or attorneys under my supervision, have examined such corporate records, certificates and other documents, and such questions of law, as I have considered
necessary or appropriate for the purposes of this opinion.
Upon the basis of such examination, it is my opinion that:
(1) When the Registration Statement has become effective under the Act, when the terms of the Debt Securities and of their
issuance and sale have been duly authorized by the Company and duly established in conformity with the applicable Indenture, when the Debt Securities have been duly executed and authenticated in accordance with the applicable Indenture and duly
issued and sold as contemplated by the Registration Statement and a duly authorized sale agreement of the Company, and if all of the foregoing actions are taken so as not to violate any applicable law or result in a default under or breach of any
agreement or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, the Debt Securities will constitute valid and binding
obligations of the Company subject to (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general application affecting the rights and remedies of creditors and (ii) general principles of
equity, regardless of whether applied in a proceeding in equity or at law. The Debt Securities covered in the opinion in this paragraph include any Debt Securities that may be issued upon exercise or otherwise pursuant to the terms of any other
Securities, as well as any Warrants that may be issued pursuant to an applicable Indenture.
(2) When the Registration
Statement has become effective under the Act, when the terms of the Common Stock and of their issuance and sale have been duly authorized and established in conformity with the Company’s Restated Certificate of
Incorporation and Amended and Restated By-Laws and when the shares of Common Stock have been duly issued and sold as contemplated by the Registration Statement and a duly authorized sale
agreement of the Company, and if all the foregoing actions are taken so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or
restriction imposed by any court or governmental body having jurisdiction over the Company, the Common Stock will be validly issued, fully paid and non-assessable. The Common Stock covered in the opinion in this paragraph include any shares of
Common Stock of the Company that may be issued upon exercise or otherwise pursuant to the terms of any other Securities.
(3)
When the Registration Statement has become effective under the Act, when the terms of the Preferred Stock of a particular series and of its issuance and sale have been duly authorized by the Company and duly established in conformity with the
Company’s Restated Certificate of Incorporation and Amended and Restated By-laws, when a Certificate of Designations with respect to the Preferred Stock of such series has been duly adopted by the Company and filed with the Secretary of State
of the State of Delaware, and when the shares of the Preferred Stock of such series have been duly issued and sold as contemplated by the Registration Statement and a duly authorized sale agreement of the Company, and if all the foregoing actions
are taken so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having
jurisdiction over the Company, the Preferred Stock of such series will be validly issued, fully paid, and nonassessable. The Preferred Stock covered in the opinion in this paragraph include any shares of Preferred Stock of the Company that may be
issued upon exercise or otherwise pursuant to the terms of any other Securities.
(4) When the Registration Statement has
become effective under the Act, when the related deposit agreement relating to the Depositary Shares has been duly authorized, executed and delivered by the parties thereto, when the terms of the Preferred Stock of a particular series and of its
issuance and sale, and the terms of the Depositary Shares and the issuance and sale of the Depositary Shares of such series, have been duly authorized by the Company and duly established in conformity with the Company’s Restated Certificate of
Incorporation, Amended and Restated By-laws and the related depositary agreement, when a Certificate of Designations with respect to the Preferred Stock of such series has been duly filed with the Secretary of State of the State of Delaware, when
the shares of the Preferred Stock of such series have been duly issued and sold as contemplated by the Registration Statement and the related depositary agreement and duly delivered to the applicable depositary, and when the Depositary Receipts
evidencing the Depositary Shares have been issued against deposit of the Preferred Stock in accordance with the related depositary agreement and duly issued and sold as contemplated by the Registration Statement and the related depositary agreement,
and if all the foregoing actions are taken so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any
court or governmental body having jurisdiction over the Company, the Depositary Receipts
evidencing the Depositary Shares of such series of Preferred Stock will be validly issued and will entitle the holders thereof to the rights specified in the Depositary Shares and the related
deposit agreement, subject to (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general application affecting the rights and remedies of creditors and (ii) general principles of equity,
regardless of whether applied in a proceeding in equity or at law. The Depositary Shares covered in the opinion in this paragraph include any Depositary Shares of the Company that may be issued upon exercise or otherwise pursuant to the terms of any
other Securities.
(5) When the Registration Statement has become effective under the Act, when the terms of the Stock Purchase
Contracts or Stock Purchase Units and of their issuance and sale have been duly authorized by the Company, when such Stock Purchase Contracts or Stock Purchase Units have been duly issued and sold as contemplated by the Registration Statement and a
related pledge agreement has been duly authorized, executed and delivered by the parties thereto, and if all the foregoing actions are taken so as not to violate any applicable law or result in a default under or breach of any agreement or
instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, the Stock Purchase Contracts or Stock Purchase Units will constitute valid
and binding obligations of the Company, subject to (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general application affecting the rights and remedies of creditors and (ii) general
principles of equity, regardless of whether applied in a proceeding in equity or at law.
(6) When the Registration Statement
has become effective under the Act, when the terms of the Warrants and of their issuance and sale have been duly authorized by the Company and duly established in conformity with the applicable warrant agreement, when the applicable warrant
agreement has been duly authorized, executed and delivered by the parties thereto and such Warrants have been duly executed, countersigned and delivered in accordance with the applicable warrant agreement and duly issued and sold as contemplated by
the Registration Statement and a duly authorized sale agreement of the Company, and if all the foregoing actions are taken so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the
Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, such Warrants will constitute valid and binding obligations of the Company, subject to
(i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general application affecting the rights and remedies of creditors and (ii) general principles of equity, regardless of whether applied
in a proceeding in equity or at law. The Warrants covered by the opinion in this paragraph include any Warrants that may be issued upon exercise or otherwise pursuant to the terms of any other Securities but do not include any Warrants that may be
required to be issued under an indenture qualified under the Trust Indenture Act of 1939.
The foregoing opinion is limited to the Federal laws of the United States, the corporate and
statutory trust laws of the State of Delaware and the laws of the State of New York and I am expressing no opinion as to the effect of the laws of any other jurisdiction.
With your approval, I have relied as to certain matters on information obtained from public officials, officers of the Company and other sources believed by me to be responsible, and I have assumed that
the signatures on all documents examined by me are genuine, assumptions which I have not independently verified.
I consent to
the filing of this opinion as an exhibit to the Registration Statement and to the use of my name therein and in the related Prospectus under the caption “Validity of Securities.” By giving such consent, I do not hereby admit that I am
within the category of persons whose consent is required under Section 7 of the Act.
[Signature Page
Follows]
|
| Very truly yours, |
|
| /s/ Kathleen B. McCabe |
|
| Kathleen B. McCabe |
| Chief Securities Counsel |
Signature Page to Exhibit
5 Opinion
Exhibit 12.1
COMPUTATION OF RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED
STOCK DIVIDENDS
The Bank of New York Mellon Corporation
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Year to
Date
Sept. 30, 2015 |
|
|
Year ended Dec. 31, |
|
| (dollar amounts in millions) |
|
|
2014 |
|
|
2013 |
|
|
2012 |
|
|
2011 |
|
|
2010 |
|
| Earnings |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Income from continuing operations before income taxes |
|
$ |
3,364 |
|
|
$ |
3,563 |
|
|
$ |
3,777 |
|
|
$ |
3,357 |
|
|
$ |
3,685 |
|
|
$ |
3,754 |
|
| Net (income) attributable to noncontrolling interests |
|
|
(61 |
) |
|
|
(84 |
) |
|
|
(81 |
) |
|
|
(78 |
) |
|
|
(53 |
) |
|
|
(63 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Income from continuing operations before income taxes attributable to shareholders of The Bank of New York Mellon
Corporation |
|
|
3,303 |
|
|
|
3,479 |
|
|
|
3,696 |
|
|
|
3,279 |
|
|
|
3,632 |
|
|
|
3,691 |
|
| Fixed charges, excluding interest on deposits |
|
|
276 |
|
|
|
380 |
|
|
|
349 |
|
|
|
484 |
|
|
|
480 |
|
|
|
519 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Income from continuing operations before income taxes and fixed charges, excluding interest on deposits applicable to the
shareholders of The Bank of New York Mellon Corporation |
|
|
3,579 |
|
|
|
3,859 |
|
|
|
4,045 |
|
|
|
3,763 |
|
|
|
4,112 |
|
|
|
4,210 |
|
| Interest on deposits |
|
|
32 |
|
|
|
83 |
|
|
|
105 |
|
|
|
154 |
|
|
|
241 |
|
|
|
131 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Income from continuing operations before income taxes and fixed charges, including interest on deposits applicable to
shareholders of The Bank of New York Mellon Corporation |
|
$ |
3,611 |
|
|
$ |
3,942 |
|
|
$ |
4,150 |
|
|
$ |
3,917 |
|
|
$ |
4,353 |
|
|
$ |
4,341 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Fixed charges |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Interest expense, excluding interest on deposits |
|
$ |
194 |
|
|
$ |
271 |
|
|
$ |
238 |
|
|
$ |
380 |
|
|
$ |
363 |
|
|
$ |
414 |
|
| One-third net rental expense (a) |
|
|
82 |
|
|
|
109 |
|
|
|
111 |
|
|
|
104 |
|
|
|
117 |
|
|
|
105 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Total fixed charges, excluding interest on deposits |
|
|
276 |
|
|
|
380 |
|
|
|
349 |
|
|
|
484 |
|
|
|
480 |
|
|
|
519 |
|
| Interest on deposits |
|
|
32 |
|
|
|
83 |
|
|
|
105 |
|
|
|
154 |
|
|
|
241 |
|
|
|
131 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Total fixed charges, including interests on deposits |
|
$ |
308 |
|
|
$ |
463 |
|
|
$ |
454 |
|
|
$ |
638 |
|
|
$ |
721 |
|
|
$ |
650 |
|
| Preferred stock dividends (b) |
|
$ |
49 |
|
|
$ |
73 |
|
|
$ |
64 |
|
|
$ |
18 |
|
|
$ |
— |
|
|
$ |
— |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Total fixed charges and preferred stock dividends, excluding interest on deposits |
|
$ |
325 |
|
|
$ |
453 |
|
|
$ |
413 |
|
|
$ |
502 |
|
|
$ |
480 |
|
|
$ |
519 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Total fixed charges and preferred stock dividends, including interest on deposits |
|
$ |
357 |
|
|
$ |
536 |
|
|
$ |
518 |
|
|
$ |
656 |
|
|
$ |
721 |
|
|
$ |
650 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Earnings to fixed charges ratios |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Excluding interest on deposits |
|
|
12.97 |
|
|
|
10.16 |
|
|
|
11.59 |
|
|
|
7.77 |
|
|
|
8.57 |
|
|
|
8.11 |
|
| Including interest on deposits |
|
|
11.72 |
|
|
|
8.51 |
|
|
|
9.14 |
|
|
|
6.14 |
|
|
|
6.04 |
|
|
|
6.68 |
|
| Earnings to fixed charges and preferred stock dividends ratios (b) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Excluding interest on deposits |
|
|
11.01 |
|
|
|
8.52 |
|
|
|
9.79 |
|
|
|
7.50 |
|
|
|
8.57 |
|
|
|
8.11 |
|
| Including interest on deposits |
|
|
10.11 |
|
|
|
7.35 |
|
|
|
8.01 |
|
|
|
5.97 |
|
|
|
6.04 |
|
|
|
6.68 |
|
| (a) |
The proportion deemed representative of the interest factor. |
| (b) |
Dividends were paid in 2015, 2014, 2013 and 2012 on the Series A and Series C preferred stock, which were issued in 2012. Dividends paid in 2015, 2014 and 2013 also
include the Series D preferred stock, which was issued in 2013. Dividends paid in 2015 also include the Series E preferred stock, which was issued in 2015. |
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
The Board of Directors
The Bank of New York Mellon Corporation:
We consent to the use of our reports with respect to the consolidated balance sheets of The Bank of New York Mellon Corporation and subsidiaries (“BNY Mellon”) as of December 31, 2014 and
2013, and the related consolidated statements of income, comprehensive income, changes in 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 as of December 31, 2014, incorporated by reference herein and to the reference to our firm under the heading “Experts” in the Registration Statement on Form S-3 and related Prospectus.
/s/ KPMG LLP
New York, New York
February 9, 2016
Exhibit 24.1
POWER OF ATTORNEY
THE BANK OF NEW YORK MELLON CORPORATION
Know all men by these presents, that each person whose signature appears below constitutes and appoints J. Kevin McCarthy, Craig T. Beazer, and Kathleen
B. McCabe, and each of them severally (for so long as each such individual is an employee of The Bank of New York Mellon Corporation or an affiliate of The Bank of New York Mellon Corporation), such person’s true and lawful attorney-in-fact and
agent, with full power of substitution and revocation, for such person and in such person’s name, place and stead, in any and all capacities, (1) to sign one or more Registration Statements pursuant to the Securities Act of 1933, as
amended, with respect to the registration of securities (including common stock, preferred stock, debt securities, preferred stock, depositary shares, stock purchase contracts, stock purchase units, and warrants) issued by The Bank of New York
Mellon Corporation, and any and all amendments (including post-effective amendments) thereto, and to file the same with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission; (2) to sign
and file any and all documents and instruments required by state securities or blue sky laws in connection with the registration of any or all of the securities covered by the above Registration Statements; and (3) to sign any documents in
connection with related filings under the Securities Exchange Act of 1934, the Trust Indenture Act of 1939 or the Investment Company Act of 1940 and any filings related to applications for listing of the securities on any stock exchanges, granting
unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with any of the above, as fully to all intents and purposes as such
person might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents and each of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
This power of attorney shall be effective as of February 9, 2016 and shall continue in full force and effect until revoked by the undersigned in a
writing filed with the secretary of The Bank of New York Mellon Corporation.
|
|
|
| /s/ Nicholas M. Donofrio Nicholas M. Donofrio, Director |
|
/s/ John A. Luke, Jr. John A. Luke, Jr., Director |
|
|
| /s/ Joseph J. Echevarria Joseph J. Echevarria, Director |
|
/s/ Mark A. Nordenberg Mark A. Nordenberg, Director |
|
|
| /s/ Edward P. Garden Edward P. Garden, Director |
|
/s/ Catherine A. Rein Catherine A. Rein, Director |
|
|
| /s/ Jeffrey A. Goldstein Jeffrey A. Goldstein, Director |
|
/s/ William C. Richardson William C. Richardson, Director |
|
|
| /s/ John M. Hinshaw John M. Hinshaw, Director |
|
/s/ Samuel C. Scott III Samuel C. Scott III, Director |
|
|
| /s/ Edmund F. Kelly Edmund F. Kelly, Director |
|
/s/ Wesley W. von Schack Wesley W. von Schack, Director |
|
|
| /s/ Richard J. Kogan Richard J. Kogan, Director |
|
|
Exhibit 25.1
UNITED STATES
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) |
DEUTSCHE BANK TRUST COMPANY AMERICAS
(formerly BANKERS TRUST COMPANY)
(Exact name of trustee as specified in
its charter)
|
|
|
| NEW YORK |
|
13-4941247 |
| (Jurisdiction of Incorporation or
organization if not a U.S. national bank) |
|
(I.R.S. Employer Identification no.) |
|
|
| 60 WALL STREET NEW YORK, NEW YORK |
|
10005 |
| (Address of principal executive offices) |
|
(Zip Code) |
Deutsche Bank Trust Company Americas
Attention: Catherine Wang
Legal Department
60 Wall Street, 36th Floor
New York, New York 10005
(212) 250 – 7544
(Name, address and telephone number of agent for
service)
THE BANK OF NEW YORK MELLON
CORPORATION
(Exact name of obligor as specified in its charter)
|
|
|
| DELAWARE |
|
13-2614959 |
| (State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. Employer Identification No.) |
|
|
| 225 LIBERTY STREET
NEW YORK, NEW YORK |
|
10286 |
| (Address of principal executive offices) |
|
(Zip code) |
SENIOR 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. |
|
|
|
| Name |
|
Address |
| Federal Reserve Bank (2nd District) |
|
New York, NY |
| Federal Deposit Insurance Corporation |
|
Washington, D.C. |
| New York State Banking Department |
|
Albany, NY |
| |
(b) |
Whether it is authorized to exercise corporate trust powers. |
Yes.
| Item 2. -15. |
Not Applicable |
| Item 16. |
List of Exhibits. |
| |
Exhibit 1 - |
Restated Organization Certificate of Bankers Trust Company dated August 31, 1998; Certificate of Amendment of the Organization Certificate of Bankers Trust Company
dated September 25, 1998; Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated December 18, 1998; Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated September 3,
1999; and Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated March 14, 2002, copies attached. |
| |
Exhibit 2 - |
Certificate of Authority to commence business, copy attached. |
| |
Exhibit 3 - |
Authorization of the Trustee to exercise corporate trust powers, copy attached. |
| |
Exhibit 4 - |
Existing By-Laws of Deutsche Bank Trust Company Americas, dated July 24, 2014, copy attached. |
| |
Exhibit 5 - |
Not applicable. |
| |
Exhibit 6 - |
Consent of Bankers Trust Company required by Section 321(b) of the Act, copy attached. |
| |
Exhibit 7 - |
A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority.
|
| |
Exhibit 8 - |
Not Applicable. |
| |
Exhibit 9 - |
Not Applicable. |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Deutsche Bank Trust Company Americas, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on this 9th day of February, 2016.
|
|
|
|
|
| DEUTSCHE BANK TRUST COMPANY AMERICAS |
|
|
|
|
/s/ Carol Ng |
| By: |
|
Name: Carol Ng |
|
|
Title: Vice President |
EXHIBIT 1
RESTATED ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY AND RELATED
AMENDMENTS
State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New York, DO HEREBY APPROVE the annexed Certificate entitled “RESTATED ORGANIZATION CERTIFICATE OF BANKERS TRUST
COMPANY Under Section 8007 of the Banking Law,” dated August 6, 1998, providing for the restatement of the Organization Certificate and all amendments into a single certificate.
|
| Witness, my hand and official seal of the Banking Department at the City of New York, this 31st day of
August in the Year of our Lord one thousand nine hundred and ninety-eight. |
|
|
| Deputy Superintendent of Banks. |
RESTATED
ORGANIZATION
CERTIFICATE
OF
BANKERS TRUST
COMPANY
Under Section 8007
Of the Banking Law
Bankers Trust
Company
130 Liberty Street
New York, N.Y. 10006
RESTATED ORGANIZATION CERTIFICATE
OF
BANKERS TRUST
COMPANY
Under Section 8007 of the Banking Law.
We, James T. Byrne, Jr. and Lea Lahtinen being respectively a Managing Director and Secretary and a Vice President and an Assistant
Secretary of BANKERS TRUST COMPANY, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of the corporation was filed by the Superintendent of Banks of the State of New York on March 5,
1903.
3. The text of the organization certificate, as amended heretofore, is hereby restated without further amendment or
change to read as herein set forth in full, to wit:
“CERTIFICATE OF
ORGANIZATION
of
BANKERS TRUST COMPANY
KNOW ALL MEN BY THESE PRESENTS That we, the
undersigned, JAMES A. BLAIR, JAMES G. CANNON, E. C. CONVERSE, HENRY P. DAVISON, GRANVILLE W. GARTH, A.
BARTON HEPBURN, WILLIAM LOGAN, GATES W. MCGARRAH, GEORGE W. PERKINS, WILLIAM H.
PORTER, JOHN F. THOMPSON, ALBERT H. WIGGIN, SAMUEL WOOLVERTON and EDWARD F. C. YOUNG, all being persons of full
age and citizens of the United States, and a majority of us being residents of the State of New York, desiring to form a corporation to be known as a Trust Company, do hereby associate ourselves together for that purpose under and pursuant to the
laws of the State of New York, and for such purpose we do hereby, under our respective hands and seals, execute and duly acknowledge this Organization Certificate in duplicate, and hereby specifically state as follows, to wit:
I. The name by which the said corporation shall be known is Bankers Trust Company.
II. The place where its business is to be transacted is the City of New York, in the State
of New York.
III. Capital Stock: The amount of capital stock which the corporation is hereafter to have is Three Billion One
Million, Six Hundred Sixty-Six Thousand, Six Hundred Seventy Dollars ($3,001,666,670), divided into Two Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (200,166,667) shares with a par value of $10 each designated as
Common Stock and 1,000 shares with a par value of One Million Dollars ($1,000,000) each designated as Series Preferred Stock.
(a) Common Stock
1. Dividends: Subject to all of the rights of the Series Preferred Stock, dividends may be declared and paid or set apart for payment upon the Common Stock out of any assets or funds of the corporation
legally available for the payment of dividends.
2. Voting Rights: Except as otherwise expressly provided with respect to the
Series Preferred Stock or with respect to any series of the Series Preferred Stock, the Common Stock shall have the exclusive right to vote for the election of directors and for all other purposes, each holder of the Common Stock being entitled to
one vote for each share thereof held.
3. Liquidation: Upon any liquidation, dissolution or winding up of the corporation,
whether voluntary or involuntary, and after the holders of the Series Preferred Stock of each series shall have been paid in full the amounts to which they respectively shall be entitled, or a sum sufficient for the payment in full set aside, the
remaining net assets of the corporation shall be distributed pro rata to the holders of the Common Stock in accordance with their respective rights and interests, to the exclusion of the holders of the Series Preferred Stock.
4. Preemptive Rights: No holder of Common Stock of the corporation shall be entitled, as such, as a matter of right, to subscribe for or
purchase any part of any new or additional issue of stock of any class or series whatsoever, any rights or options to purchase stock of any class or series whatsoever, or any securities convertible into, exchangeable for or carrying rights or
options to purchase stock of any class or series whatsoever, whether now or hereafter authorized, and whether issued for cash or other consideration, or by way of dividend or other distribution.
2
(b) Series Preferred Stock
1. Board Authority: The Series Preferred Stock may be issued from time to time by the Board of Directors as herein provided in one or
more series. The designations, relative rights, preferences and limitations of the Series Preferred Stock, and particularly of the shares of each series thereof, may, to the extent permitted by law, be similar to or may differ from those of any
other series. The Board of Directors of the corporation is hereby expressly granted authority, subject to the provisions of this Article III, to issue from time to time Series Preferred Stock in one or more series and to fix from time to time before
issuance thereof, by filing a certificate pursuant to the Banking Law, the number of shares in each such series of such class and all designations, relative rights (including the right, to the extent permitted by law, to convert into shares of any
class or into shares of any series of any class), preferences and limitations of the shares in each such series, including, but without limiting the generality of the foregoing, the following:
(i) The number of shares to constitute such series (which number may at any time, or from time to time, be increased or
decreased by the Board of Directors, notwithstanding that shares of the series may be outstanding at the time of such increase or decrease, unless the Board of Directors shall have otherwise provided in creating such series) and the distinctive
designation thereof;
(ii) The dividend rate on the shares of such series, whether or not dividends on the
shares of such series shall be cumulative, and the date or dates, if any, from which dividends thereon shall be cumulative;
(iii) Whether or not the shares of such series shall be redeemable, and, if redeemable, the date or dates upon or after which they shall be redeemable, the amount or amounts per share (which shall be, in
the case of each share, not less than its preference upon involuntary liquidation, plus an amount equal to all dividends thereon accrued and unpaid, whether or not earned or declared) payable thereon in the case of the redemption thereof, which
amount may vary at different redemption dates or otherwise as permitted by law;
(iv) The right, if any, of
holders of shares of such series to convert the same into, or exchange the same for, Common Stock or other stock as permitted by law, and the terms and conditions of such conversion or exchange, as well as provisions for adjustment of the conversion
rate in such events as the Board of Directors shall determine;
3
(v) The amount per share payable on the shares of such series upon the
voluntary and involuntary liquidation, dissolution or winding up of the corporation;
(vi) Whether the holders
of shares of such series shall have voting power, full or limited, in addition to the voting powers provided by law and, in case additional voting powers are accorded, to fix the extent thereof; and
(vii) Generally to fix the other rights and privileges and any qualifications, limitations or restrictions of such rights
and privileges of such series, provided, however, that no such rights, privileges, qualifications, limitations or restrictions shall be in conflict with the organization certificate of the corporation or with the resolution or resolutions adopted by
the Board of Directors providing for the issue of any series of which there are shares outstanding.
All shares of Series
Preferred Stock of the same series shall be identical in all respects, except that shares of any one series issued at different times may differ as to dates, if any, from which dividends thereon may accumulate. All shares of Series Preferred Stock
of all series shall be of equal rank and shall be identical in all respects except that to the extent not otherwise limited in this Article III any series may differ from any other series with respect to any one or more of the designations, relative
rights, preferences and limitations described or referred to in subparagraphs (i) to (vii) inclusive above.
2.
Dividends: Dividends on the outstanding Series Preferred Stock of each series shall be declared and paid or set apart for payment before any dividends shall be declared and paid or set apart for payment on the Common Stock with respect to the same
quarterly dividend period. Dividends on any shares of Series Preferred Stock shall be cumulative only if and to the extent set forth in a certificate filed pursuant to law. After dividends on all shares of Series Preferred Stock (including
cumulative dividends if and to the extent any such shares shall be entitled thereto) shall have been declared and paid or set apart for payment with respect to any quarterly dividend period, then and not otherwise so long as any shares of Series
Preferred Stock shall remain outstanding, dividends may be declared and paid or set apart for payment with respect to the same quarterly dividend period on the Common Stock out the assets or funds of the corporation legally available therefor.
All shares of Series Preferred Stock of all series shall be of equal rank, preference and priority as to dividends
irrespective of whether or not the rates
4
of dividends to which the same shall be entitled shall be the same and when the stated dividends are not paid in full, the shares of all series of the Series Preferred Stock shall share ratably
in the payment thereof in accordance with the sums which would be payable on such shares if all dividends were paid in full, provided, however, that any two or more series of the Series Preferred Stock may differ from each other as to the existence
and extent of the right to cumulative dividends, as aforesaid.
3. Voting Rights: Except as otherwise specifically provided in
the certificate filed pursuant to law with respect to any series of the Series Preferred Stock, or as otherwise provided by law, the Series Preferred Stock shall not have any right to vote for the election of directors or for any other purpose and
the Common Stock shall have the exclusive right to vote for the election of directors and for all other purposes.
4.
Liquidation: In the event of any liquidation, dissolution or winding up of the corporation, whether voluntary or involuntary, each series of Series Preferred Stock shall have preference and priority over the Common Stock for payment of the amount to
which each outstanding series of Series Preferred Stock shall be entitled in accordance with the provisions thereof and each holder of Series Preferred Stock shall be entitled to be paid in full such amount, or have a sum sufficient for the payment
in full set aside, before any payments shall be made to the holders of the Common Stock. If, upon liquidation, dissolution or winding up of the corporation, the assets of the corporation or proceeds thereof, distributable among the holders of the
shares of all series of the Series Preferred Stock shall be insufficient to pay in full the preferential amount aforesaid, then such assets, or the proceeds thereof, shall be distributed among such holders ratably in accordance with the respective
amounts which would be payable if all amounts payable thereon were paid in full. After the payment to the holders of Series Preferred Stock of all such amounts to which they are entitled, as above provided, the remaining assets and funds of the
corporation shall be divided and paid to the holders of the Common Stock.
5. Redemption: In the event that the Series
Preferred Stock of any series shall be made redeemable as provided in clause (iii) of paragraph 1 of section (b) of this Article III, the corporation, at the option of the Board of Directors, may redeem at any time or times, and from time
to time, all or any part of any one or more series of Series Preferred Stock outstanding by paying for each share the then applicable redemption price fixed by the Board of Directors as provided herein, plus an amount equal to accrued and unpaid
5
dividends to the date fixed for redemption, upon such notice and terms as may be specifically provided in the certificate filed pursuant to law with respect to the series.
6. Preemptive Rights: No holder of Series Preferred Stock of the corporation shall be entitled, as such, as a matter of right, to
subscribe for or purchase any part of any new or additional issue of stock of any class or series whatsoever, any rights or options to purchase stock of any class or series whatsoever, or any securities convertible into, exchangeable for or carrying
rights or options to purchase stock of any class or series whatsoever, whether now or hereafter authorized, and whether issued for cash or other consideration, or by way of dividend.
(c) Provisions relating to Floating Rate Non-Cumulative Preferred Stock, Series A. (Liquidation value $1,000,000 per share.)
1. Designation: The distinctive designation of the series established hereby shall be “Floating Rate Non-Cumulative
Preferred Stock, Series A” (hereinafter called “Series A Preferred Stock”).
2. Number: The number of shares of
Series A Preferred Stock shall initially be 250 shares. Shares of Series A Preferred Stock redeemed, purchased or otherwise acquired by the corporation shall be cancelled and shall revert to authorized but unissued Series Preferred Stock
undesignated as to series.
3. Dividends:
(a) Dividend Payment Dates. Holders of the Series A Preferred Stock shall be entitled to receive non-cumulative cash dividends when, as and if declared by the Board of Directors of the corporation, out of
funds legally available therefor, from the date of original issuance of such shares (the “Issue Date”) and such dividends will be payable on March 28, June 28, September 28 and December 28 of each year
(“Dividend Payment Date”) commencing September 28, 1990, at a rate per annum as determined in paragraph 3(b) below. The period beginning on the Issue Date and ending on the day preceding the first Dividend Payment Date and each
successive period beginning on a Dividend Payment Date and ending on the day preceding the next succeeding Dividend Payment Date is herein called a “Dividend Period”. If any Dividend Payment Date shall be, in The City of New York, a Sunday
or a legal holiday or a day on which banking institutions are authorized by law to close, then payment will be postponed to the next succeeding business day with the same force and effect as if made on the Dividend Payment Date, and no interest
shall accrue for such Dividend Period after such Dividend Payment Date.
6
(b) Dividend Rate. The dividend rate from time to time payable in respect of Series A
Preferred Stock (the “Dividend Rate”) shall be determined on the basis of the following provisions:
(i) On the
Dividend Determination Date, LIBOR will be determined on the basis of the offered rates for deposits in U.S. dollars having a maturity of three months commencing on the second London Business Day immediately following such Dividend Determination
Date, as such rates appear on the Reuters Screen LIBO Page as of 11:00 A.M. London time, on such Dividend Determination Date. If at least two such offered rates appear on the Reuters Screen LIBO Page, LIBOR in respect of such Dividend Determination
Date will be the arithmetic mean (rounded to the nearest one-hundredth of a percent, with five one-thousandths of a percent rounded upwards) of such offered rates. If fewer than those offered rates appear, LIBOR in respect of such Dividend
Determination Date will be determined as described in paragraph (ii) below.
(ii) On any Dividend Determination Date on
which fewer than those offered rates for the applicable maturity appear on the Reuters Screen LIBO Page as specified in paragraph (i) above, LIBOR will be determined on the basis of the rates at which deposits in U.S. dollars having a maturity
of three months commencing on the second London Business Day immediately following such Dividend Determination Date and in a principal amount of not less than $1,000,000 that is representative of a single transaction in such market at such time are
offered by three major banks in the London interbank market selected by the corporation at approximately 11:00 A.M., London time, on such Dividend Determination Date to prime banks in the London market. The corporation will request the principal
London office of each of such banks to provide a quotation of its rate. If at least two such quotations are provided, LIBOR in respect of such Dividend Determination Date will be the arithmetic mean (rounded to the nearest one-hundredth of a
percent, with five one-thousandths of a percent rounded upwards) of such quotations. If fewer than two quotations are provided, LIBOR in respect of such Dividend Determination Date will be the arithmetic mean (rounded to the nearest one-hundredth of
a percent, with five one-thousandths of a percent rounded upwards) of the rates quoted by three major banks in New York City selected by the corporation at approximately 11:00 A.M., New York City time, on such Dividend Determination Date for loans
in U.S. dollars to leading European
7
banks having a maturity of three months commencing on the second London Business Day immediately following such Dividend Determination Date and in a principal amount of not less than $1,000,000
that is representative of a single transaction in such market at such time; provided, however, that if the banks selected as aforesaid by the corporation are not quoting as aforementioned in this sentence, then, with respect to such Dividend Period,
LIBOR for the preceding Dividend Period will be continued as LIBOR for such Dividend Period.
(iii) The Dividend Rate for any
Dividend Period shall be equal to the lower of 18% or 50 basis points above LIBOR for such Dividend Period as LIBOR is determined by sections (i) or (ii) above.
As used above, the term “Dividend Determination Date” shall mean, with respect to any Dividend Period, the second London Business Day prior to the commencement of such Dividend Period; and the
term “London Business Day” shall mean any day that is not a Saturday or Sunday and that, in New York City, is not a day on which banking institutions generally are authorized or required by law or executive order to close and that is a day
on which dealings in deposits in U.S. dollars are transacted in the London interbank market.
4. Voting Rights: The holders of
the Series A Preferred Stock shall have the voting power and rights set forth in this paragraph 4 and shall have no other voting power or rights except as otherwise may from time to time be required by law.
So long as any shares of Series A Preferred Stock remain outstanding, the corporation shall not, without the affirmative vote or consent
of the holders of at least a majority of the votes of the Series Preferred Stock entitled to vote outstanding at the time, given in person or by proxy, either in writing or by resolution adopted at a meeting at which the holders of Series A
Preferred Stock (alone or together with the holders of one or more other series of Series Preferred Stock at the time outstanding and entitled to vote) vote separately as a class, alter the provisions of the Series Preferred Stock so as to
materially adversely affect its rights; provided, however, that in the event any such materially adverse alteration affects the rights of only the Series A Preferred Stock, then the alteration may be effected with the vote or consent of at least a
majority of the votes of the Series A Preferred Stock; provided, further, that an increase in the amount of the authorized Series Preferred Stock and/or the creation and/or issuance of other series of Series Preferred Stock in accordance with the
organization certificate shall not be, nor be deemed to be,
8
materially adverse alterations. In connection with the exercise of the voting rights contained in the preceding sentence, holders of all series of Series Preferred Stock which are granted such
voting rights (of which the Series A Preferred Stock is the initial series) shall vote as a class (except as specifically provided otherwise) and each holder of Series A Preferred Stock shall have one vote for each share of stock held and each other
series shall have such number of votes, if any, for each share of stock held as may be granted to them.
The foregoing voting
provisions will not apply if, in connection with the matters specified, provision is made for the redemption or retirement of all outstanding Series A Preferred Stock.
5. Liquidation: Subject to the provisions of section (b) of this Article III, upon any liquidation, dissolution or winding up of the corporation, whether voluntary or involuntary, the holders of the
Series A Preferred Stock shall have preference and priority over the Common Stock for payment out of the assets of the corporation or proceeds thereof, whether from capital or surplus, of $1,000,000 per share (the “liquidation value”)
together with the amount of any dividends accrued and unpaid thereon, and after such payment the holders of Series A Preferred Stock shall be entitled to no other payments.
6. Redemption: Subject to the provisions of section (b) of this Article III, Series A Preferred Stock may be redeemed, at the option of the corporation in whole or part, at any time or from time to
time at a redemption price of $1,000,000 per share, in each case plus accrued and unpaid dividends to the date of redemption.
At the option of the corporation, shares of Series A Preferred Stock redeemed or otherwise acquired may be restored to the status of
authorized but unissued shares of Series Preferred Stock.
In the case of any redemption, the corporation shall give notice of
such redemption to the holders of the Series A Preferred Stock to be redeemed in the following manner: a notice specifying the shares to be redeemed and the time and place of redemption (and, if less than the total outstanding shares are to be
redeemed, specifying the certificate numbers and number of shares to be redeemed) shall be mailed by first class mail, addressed to the holders of record of the Series A Preferred Stock to be redeemed at their respective addresses as the same shall
appear upon the books of the corporation, not more than sixty (60) days and not less than thirty (30) days previous to the date fixed for redemption. In the event such notice is not given to any shareholder such failure to give notice
shall not affect the notice given to other shareholders.
9
If less than the whole amount of outstanding Series A Preferred Stock is to be redeemed, the shares to be redeemed shall be selected by lot or pro rata in any manner determined by resolution of
the Board of Directors to be fair and proper. From and after the date fixed in any such notice as the date of redemption (unless default shall be made by the corporation in providing moneys at the time and place of redemption for the payment of the
redemption price) all dividends upon the Series A Preferred Stock so called for redemption shall cease to accrue, and all rights of the holders of said Series A Preferred Stock as stockholders in the corporation, except the right to receive the
redemption price (without interest) upon surrender of the certificate representing the Series A Preferred Stock so called for redemption, duly endorsed for transfer, if required, shall cease and terminate. The corporation’s obligation to
provide moneys in accordance with the preceding sentence shall be deemed fulfilled if, on or before the redemption date, the corporation shall deposit with a bank or trust company (which may be an affiliate of the corporation) having an office in
the Borough of Manhattan, City of New York, having a capital and surplus of at least $5,000,000, funds necessary for such redemption, in trust, with irrevocable instructions that such funds be applied to the redemption of the shares of Series A
Preferred Stock so called for redemption. Any interest accrued on such funds shall be paid to the corporation from time to time. Any funds so deposited and unclaimed at the end of two (2) years from such redemption date shall be released or
repaid to the corporation, after which the holders of such shares of Series A Preferred Stock so called for redemption shall look only to the corporation for payment of the redemption price.
IV. The name, residence and post office address of each member of the corporation are as follows:
|
|
|
|
|
| Name |
|
Residence |
|
Post Office Address |
| JAMES A. BLAIR |
|
9 West 50th Street, Manhattan,
New York City |
|
33 Wall Street, Manhattan,
New York City |
|
|
|
| JAMES G. CANNON |
|
72 East 54th Street, Manhattan,
New York City |
|
14 Nassau Street, Manhattan,
New York City |
|
|
|
| E. C. CONVERSE |
|
3 East 78th Street, Manhattan,
New York City |
|
139 Broadway, Manhattan,
New York City |
|
|
|
| HENRY P. DAVISON |
|
Englewood,
New Jersey |
|
2 Wall Street, Manhattan,
New York City |
10
|
|
|
|
|
| Name |
|
Residence |
|
Post Office Address |
| GRANVILLE W. GARTH |
|
160 West 59th Street,
New York City |
|
33 Wall Street, Manhattan,
New York City |
|
|
|
| A. BARTON HEPBURN |
|
205 West 57th Street, Manhattan,
New York City |
|
83 Cedar Street, Manhattan,
New York City |
|
|
|
| WILLIAM LOGAN |
|
Montclair,
New Jersey |
|
13 Nassau Street, Manhattan,
New York City |
|
|
|
| GATES W. MCGARRAH |
|
129 Riverside Ave., Manhattan,
New York City |
|
29 Wall Street, Manhattan,
New York City |
|
|
|
| GEORGE W. PERKINS |
|
Riverdale,
New York |
|
23 Wall Street, Manhattan,
New York City |
|
|
|
| WILLIAM H. PORTER |
|
56 East 67th Street, Manhattan,
New York City |
|
270 Broadway, Manhattan,
New York City |
|
|
|
| JOHN F. THOMPSON |
|
Newark,
New Jersey |
|
143 Liberty Street, Manhattan,
New York City |
|
|
|
| ALBERT H. WIGGIN |
|
42 West 49th Street, Manhattan,
New York City |
|
214 Broadway, Manhattan,
New York City |
|
|
|
| SAMUEL WOOLVERTON |
|
Mount Vernon,
New York |
|
34 Wall Street, Manhattan,
New York City |
|
|
|
| EDWARD F. C. YOUNG |
|
85 Glenwood Avenue, Jersey City,
New Jersey |
|
1 Exchange Place, Jersey City,
New Jersey |
V. The existence of the corporation shall be perpetual.
VI. The subscribers, the members of the said corporation, do, and each for himself does, hereby declare that he will accept the
responsibilities and faithfully discharge the duties of a director therein, if elected to act as such, when authorized in accordance with the provisions of the Banking Law of the State of New York,
VII. The number of directors of the corporation shall be not less than 10 nor more than 25.”
11
4. The foregoing restatement of the organization certificate was authorized by the Board of
Directors of the corporation at a meeting held on July 21,1998.
IN WITNESS WHEREOF, we have made
and subscribed this certificate this 6th day of August,
1998.
|
|
| James T. Byrne, Jr. |
| Managing Director and Secretary |
|
|
| Lea Lahtinen |
| Vice President and Assistant Secretary |
12
|
|
|
|
|
| STATE OF NEW YORK |
|
} |
|
ss.: |
| COUNTY OF NEW YORK |
|
|
Lea Lahtinen, being duly sworn, deposes and says that she is a Vice President and an Assistant Secretary
of Bankers Trust Company, the corporation described in the foregoing certificate; that she has read the foregoing certificate and knows the contents thereof, and that the statements therein contained are true.
|
|
| Lea Lahtinen |
|
| Sworn to before me this
6th day of August, 1998. |
|
|
| Notary Public |
13
State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New York, DO HEREBY APPROVE the annexed Certificate entitled “CERTIFICATE OF AMENDMENT OF THE ORGANIZATION
CERTIFICATE OF BANKERS TRUST COMPANY Under Section 8005 of the Banking Law,” dated September 16, 1998, providing for an increase in authorized capital stock from $3,001,666,670 consisting of 200,166,667 shares with a par value of
$10 each designated as Common Stock and 1,000 shares with a par value of $1,000,000 each designated as Series Preferred Stock to $3,501,666,670 consisting of 200,166,667 shares with a par value of $10 each designated as Common Stock and 1,500 shares
with a par value of $1,000,000 each designated as Series Preferred Stock.
|
| Witness, my hand and official seal of the Banking Department at the City of New York, this 25th day of September in
the Year of our Lord one thousand nine hundred and ninety-eight |
|
|
| Deputy Superintendent of Bank |
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST COMPANY
Under Section 8005 of the Banking Law
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing Director and Secretary and a Vice President and an Assistant
Secretary of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the Superintendent of Banks on the 5th day of March, 1903.
3. The organization certificate as heretofore amended is hereby amended to increase the aggregate number of shares which the corporation
shall have authority to issue and to increase the amount of its authorized capital stock in conformity therewith.
4. Article
III of the organization certificate with reference to the authorized capital stock, the number of shares into which the capital stock shall be divided, the par value of the shares and the capital stock outstanding, which reads as follows:
“III. The amount of capital stock which the corporation is hereafter to have is Three Billion One Million, Six Hundred
Sixty-Six Thousand, Six Hundred Seventy Dollars ($3,001,666,670), divided into Two Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (200,166,667) shares with a par value of $10 each designated as Common Stock and 1000
shares with a par value of One Million Dollars ($1,000,000) each designated as Series Preferred Stock.”
is hereby amended to read as
follows:
“III. The amount of capital stock which the corporation is hereafter to have is Three Billion Five Hundred One
Million, Six Hundred Sixty-Six Thousand, Six Hundred Seventy Dollars ($3,501,666,670), divided into Two Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (200,166,667) shares with a par value of $10 each designated as
Common Stock and 1500 shares with a par value of One Million Dollars ($1,000,000) each designated as Series Preferred Stock.”
5. The foregoing amendment of the organization certificate was authorized by unanimous
written consent signed by the holder of all outstanding shares entitled to vote thereon.
IN WITNESS
WHEREOF, we have made and subscribed this certificate this 16th day of September, 1998.
|
|
| James T. Byrne, Jr. |
| Managing Director and Secretary |
|
|
| Lea Lahtinen |
| Vice President and Assistant Secretary |
|
|
|
|
|
| State of New York |
|
) |
|
|
|
|
: |
|
ss. |
| County of New York |
|
) |
|
|
Lea Lahtinen, being duly sworn, deposes and says that she is a Vice President and an Assistant Secretary
of Bankers Trust Company, the corporation described in the foregoing certificate; that she has read the foregoing certificate and knows the contents thereof, and that the statements therein contained are true.
|
|
|
| Lea Lahtinen |
|
| Sworn to before me this
16th day of September, 1998. |
| |
|
|
| Notary Public |
| |
| SANDRA L. WEST Notary Public State of New York No. 31-4942401
Qualified in New York County Commission Expires September 10 2000 |
State of New York,
Banking Department
I, P. VINCENT CONLON, Deputy Superintendent of Banks of the State of New York, DO HEREBY APPROVE the annexed Certificate entitled “CERTIFICATE OF AMENDMENT OF THE ORGANIZATION
CERTIFICATE OF BANKERS TRUST COMPANY Under Section 8005 of the Banking Law,” dated December 16, 1998, providing for an increase in authorized capital stock from $3,501,666,670 consisting of 200,166,667 shares with a par value of
$10 each designated as Common Stock and 1,500 shares with a par value of $1,000,000 each designated as Series Preferred Stock to $3,627,308,670 consisting of 212,730,867 shares with a par value of $10 each designated as Common Stock and 1,500 shares
with a par value of $1,000,000 each designated as Series Preferred Stock.
|
| Witness, my hand and official seal of the Banking Department at the City of New York, this 18th day of
December in the Year of our Lord one thousand nine hundred and ninety-eight. |
|
|
| Deputy Superintendent of Banks. |
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST COMPANY
Under Section 8005 of the Banking Law
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing Director and Secretary and a Vice President and an Assistant
Secretary of Bankers Trust Company, do hereby certify;
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the Superintendent of Banks on the 5th day of March, 1903.
3. The organization certificate as heretofore amended is hereby amended to increase the aggregate number of shares which the corporation
shall have authority to issue and to increase the amount of its authorized capital stock in conformity therewith.
4. Article
III of the organization certificate with reference to the authorized capital stock, the number of shares into which the capital stock shall be divided, the par value of the shares and the capital stock outstanding, which reads as follows:
“III. The amount of capital stock which the corporation is hereafter to have is Three Billion Five Hundred One Million,
Six Hundred Sixty-Six Thousand, Six Hundred Seventy Dollars ($3,501,666,670), divided into Two Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (200,166,667) shares with a par value of $10 each designated as Common Stock
and 1500 shares with a par value of One Million Dollars ($1,000,000) each designated as Series Preferred Stock.”
is hereby amended to
read as follows:
“III. The amount of capital stock which the corporation is hereafter to have is Three Billion Six
Hundred Twenty-Seven Million, Three Hundred Eight Thousand, Six Hundred Seventy Dollars ($3,627,308,670), divided into Two Hundred Twelve Million, Seven Hundred Thirty Thousand, Eight Hundred Sixty-Seven (212,730,867) shares with a par value of
$10 each designated as Common Stock and 1500 shares with a par value of One Million Dollars ($1,000,000) each designated as Series Preferred Stock.”
5. The foregoing amendment of the organization certificate was authorized by unanimous
written consent signed by the holder of all outstanding shares entitled to vote thereon.
IN WITNESS
WHEREOF, we have made and subscribed this certificate this 16th day of December, 1998.
|
|
| James T. Byrne, Jr. |
| Managing Director and Secretary |
|
|
| Lea Lahtinen |
| Vice President and Assistant Secretary |
|
|
|
|
|
| State of New York |
|
) |
|
|
|
|
: |
|
ss. |
| County of New York |
|
) |
|
|
Lea Lahtinen, being duly sworn, deposes and says that she is a Vice President and an Assistant Secretary
of Bankers Trust Company, the corporation described in the foregoing certificate; that she has read the foregoing certificate and knows the contents thereof, and that the statements therein contained are true.
|
|
| Lea Lahtinen |
|
| Sworn to before me this
16th day of December, 1998. |
| |
|
| Notary Public |
| |
| SANDRA L WEST Notary Public State of New York No 31-4942401
Qualified in New York County Commission Expires September 19, 2000 |
State of New York,
Banking Department
I, P. VINCENT CONLON, Deputy Superintendent of Banks of the State of New York, DO HEREBY APPROVE the annexed Certificate entitled “CERTIFICATE OF AMENDMENT OF THE ORGANIZATION
CERTIFICATE OF BANKERS TRUST COMPANY Under Section 8005 of the Banking Law,” dated September 3,1999, providing for a reduction in the minimum number of directors required from ten to seven, and a reduction in the maximum number of
directors from twenty-five to fifteen.
|
| Witness, my hand and official seal of the Banking Department at the City of New York, this 3rd day of
September in the Year of our Lord one thousand nine hundred and ninety-nine. |
|
|
| Deputy Superintendent of Banks |
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF
BANKERS TRUST COMPANY
Under Section 8005 of the Banking Law
We, James T.
Byrne Jr., and Lea Lahtinen, being respectively a Managing Director and the Secretary, and Vice President and an Assistant Secretary of Bankers Trust Company, do hereby certify:
1. The name of corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the Superintendent of Banks on the 5th day of March, 1903.
3. The organization certificate as heretofore amended is hereby amended to reduce the minimum number of directors required from 10 to 7 and to reduce the maximum number of directors required from 25 to
15.
4. Article VII of the organization certificate with reference to the number of directors, which reads as follows:
“VII. The number of directors of the corporation shall be not less than 10 nor more than 25.”
is hereby amended to read as follows:
“VII. The number of directors of the corporation shall be not less than 7 nor more than 15.”
5. The foregoing amendment of the organization certificate was authorized by unanimous written consent signed by the holder of all outstanding shares entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this
30th day of July, 1999.
|
|
|
|
| James T. Byrne Jr. |
| Managing Director and Secretary |
|
|
|
|
| Lea Lahtinen |
| Vice President and Assistant Secretary |
|
|
|
|
|
| State of New York |
|
) |
|
|
|
|
: |
|
ss. |
| County of New York |
|
) |
|
|
Lea Lahtinen, being duly sworn, deposes and says that she is a Vice President and an Assistant Secretary
of Bankers Trust Company, the corporation described in the foregoing certificate; that she has read the foregoing certificate and knows the contents thereof, and that the statements therein contained are true.
|
|
| Lea Lahtinen |
|
| Sworn to before me this
30th day of July, 1999. |
|
|
| Notary Public |
|
| SANDRA L WEST Notary Public State of New York No 31-4942401
Qualified in New York County Commission Expires September 19, 2000 |
State of New York,
Banking Department
I, P. VINCENT CONLON, Deputy Superintendent of Banks of the State of New York, DO HEREBY APPROVE the annexed Certificate entitled “CERTIFICATE OF AMENDMENT OF THE ORGANIZATION
CERTIFICATE OF BANKERS TRUST COMPANY under Section 8005 of the Banking Law” dated February 27, 2002, providing for a change of name of BANKERS TRUST COMPANY to DEUTSCHE BANK TRUST COMPANY AMERICAS.
|
| Witness, my hand and official seal of the Banking Department at the City of New York, this 14th day of March two thousand and two. |
|
|
| Deputy Superintendent of Banks |
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF
BANKERS TRUST COMPANY
Under Section 8005 of the Banking Law
We, James T.
Byrne Jr., and Lea Lahtinen, being respectively the Secretary, and Vice President and an Assistant Secretary of Bankers Trust Company, do hereby certify:
1. The name of corporation is Bankers Trust Company.
2. The organization
certificate of said corporation was filed by the Superintendent of Banks on the 5th day of March, 1903.
3. Pursuant to
Section 8005 of the Banking Law, attached hereto as Exhibit A is a certificate issued by the State of New York, Banking Department listing all of the amendments to the Organization Certificate of Bankers Trust Company since its organization
that have been filed in the Office of the Superintendent of Banks.
4. The organization certificate as heretofore amended is
hereby amended to change the name of Bankers Trust Company to Deutsche Bank Trust Company Americas to be effective on April 15, 2002.
5. The first paragraph number 1. of the organization certificate of Bankers Trust Company with the reference to the name of the Bankers Trust company, which reads as follows:
“1. The name of the corporation is Bankers Trust Company.”
is hereby amended to read as follows effective on April 15, 2002:
“1.
The name of the corporation is Deutsche Bank Trust Company Americas.”
6. The foregoing amendment of the organization certificate was authorized by unanimous
written consent signed by the holder of all outstanding shares entitled to vote thereon.
IN WITNESS
WHEREOF, we have made and subscribed this certificate this 27th day of February, 2002.
|
|
| James T. Byrne Jr. |
| Secretary |
|
|
| Lea Lahtinen |
| Vice President and Assistant Secretary |
|
|
|
|
|
| State of New York |
|
) |
|
|
|
|
: |
|
ss. |
| County of New York |
|
) |
|
|
Lea Lahtinen, being duly sworn, deposes and says that she is a Vice President and an Assistant Secretary
of Bankers Trust Company, the corporation described in the foregoing certificate; that she has read the foregoing certificate and knows the contents thereof, and that the statements therein contained are true.
|
|
| Lea Lahtinen |
Sworn to before me
this 27th day
of February, 2002.
|
|
|
| Notary Public |
|
| SANDRA L. WEST Notary Public State Of New York No. 01WE4942401
Qualified in New York County Commission Expires September 19, 2002 |
- 2 -
Exhibit A
New York State
Department of Financial Services
I, MANZAR SAHEBJAM-ATABAKI, Deputy Superintendent, Licensed Financial Services, Banking Division, New York State
Department of Financial Services, DO HEREBY CERTIFY:
THAT, the records in
the Office of the Superintendent of Financial Services indicate that DEUTSCHE BANK TRUST COMPANY AMERICAS is a corporation duly organized and existing under the laws of the State of New York as a trust company, pursuant to
Article III of the Banking Law; and
THAT, the Organization Certificate of DEUTSCHE BANK
TRUST COMPANY AMERICAS was filed in the Office of the Superintendent of Financial Services on March 5, 1903 under the title of BANKERS TRUST COMPANY, and such corporation was authorized to commence business on
March 24, 1903; and
THAT, the following amendments to its Organization Certificate have been
filed in the Office of the Superintendent of Financial Services as of the dates specified:
Certificate of Amendment of
Certificate of Incorporation providing for an increase in number of directors - filed on January 14, 1905
Certificate of Amendment of Certificate of Incorporation providing for an increase in capital stock - filed on August 4, 1909
Certificate of Amendment of Certificate of Incorporation providing for an increase in number of directors - filed on
February 1, 1911
Certificate of Amendment of Certificate of Incorporation providing for an increase in number of
directors - filed on June 17, 1911
Certificate of Amendment of Certificate of Incorporation providing for an
increase in capital stock - filed on August 8, 1911
Certificate of Amendment of Certificate of Incorporation
providing for an increase in number of directors - filed on August 8, 1911
Certificate of Amendment of Certificate
of Incorporation providing for an increase in capital stock - filed on March 21, 1912
Certificate of Amendment of
Certificate of Incorporation providing for a decrease in number of directors - filed on January 15, 1915
Certificate of Amendment of Certificate of Incorporation providing for a decrease in number of directors - filed on December 18,
1916
Page 1 of 5
New York State
Department of Financial Services
Certificate of Amendment of Certificate of Incorporation providing for an increase in capital stock - filed on April 20, 1917
Certificate of Amendment of Certificate of Incorporation providing for an increase in number of directors - filed on April 20,
1917
Certificate of Amendment of Certificate of Incorporation providing for an increase in capital stock - filed on
December 28, 1918
Certificate of Amendment of Certificate of Incorporation providing for an increase in capital
stock - filed on December 4, 1919
Certificate of Amendment of Certificate of Incorporation providing for an
increase in number of directors - filed January 15, 1926
Certificate of Amendment of Certificate of Incorporation
providing for an increase in capital stock - filed on June 12, 1928
Certificate of Amendment of Certificate of
Incorporation providing for a change in shares - filed April 4, 1929
Certificate of Amendment of Certificate of
Incorporation providing for a minimum and maximum number of directors - filed on January 11, 1934
Certificate of
Extension to perpetual - filed on January 13, 1941
Certificate of Amendment of Certificate of Incorporation
providing for a minimum and maximum number of directors - filed on January 13, 1941
Certificate of Amendment of
Certificate of Incorporation providing for an increase in capital stock - filed on December 11, 1944
Certificate
of Amendment of Certificate of Incorporation providing for an increase in capital stock - filed January 30, 1953
Restated Certificate of Incorporation - filed November 6, 1953
Certificate of Amendment of Certificate of Incorporation providing for an increase in capital stock - filed on April 8, 1955
Page 2 of 5
New York State
Department of Financial Services
Certificate of Amendment of Certificate of Incorporation providing for an increase in capital stock - filed on February 1, 1960
Certificate of Amendment of Certificate of Incorporation providing for an increase in capital stock - filed on July 14, 1960
Certificate of Amendment of Certificate of Incorporation providing for a change in shares - filed on September 30,
1960
Certificate of Amendment of Certificate of Incorporation providing for an increase in capital stock - filed on
January 26, 1962
Certificate of Amendment of Certificate of Incorporation providing for a change in shares - filed
on September 9, 1963
Certificate of Amendment of Certificate of Incorporation providing for an increase in capital
stock - filed on February 7, 1964
Certificate of Amendment of Certificate of Incorporation providing for an
increase in capital stock - filed on February 24, 1965
Certificate of Amendment of the Organization Certificate
providing for a decrease in capital stock - filed January 24, 1967
Restated Organization Certificate - filed
June 1, 1971
Certificate of Amendment of the Organization Certificate providing for an increase in capital stock -
filed October 29, 1976
Certificate of Amendment of the Organization Certificate providing for an increase in
capital stock - filed December 22, 1977
Certificate of Amendment of the Organization Certificate providing for an
increase in capital stock - filed August 5, 1980
Restated Organization Certificate - filed July 1, 1982
Certificate of Amendment of the Organization Certificate providing for an increase in capital stock - filed
December 27, 1984
Certificate of Amendment of the Organization Certificate providing for an increase in capital
stock - filed September 18, 1986
Page 3 of 5
New York State
Department of Financial Services
Certificate of Amendment of the Organization Certificate providing for a minimum and maximum number of directors - filed January 22, 1990
Certificate of Amendment of the Organization Certificate providing for an increase in capital stock - filed June 28, 1990
Restated Organization Certificate - filed August 20, 1990
Certificate of Amendment of the Organization Certificate providing for an increase in capital stock - filed June 26, 1992
Certificate of Amendment of the Organization Certificate providing for an increase in capital stock - filed
March 28, 1994
Certificate of Amendment of the Organization Certificate providing for an increase in capital stock
- filed June 23, 1995
Certificate of Amendment of the Organization Certificate providing for an increase in
capital stock - filed December 27, 1995
Certificate of Amendment of the Organization Certificate providing for an
increase in capital stock - filed March 21, 1996
Certificate of Amendment of the Organization Certificate
providing for an increase in capital stock - filed December 27, 1996
Certificate of Amendment to the Organization
Certificate providing for an increase in capital stock – filed June 27, 1997
Certificate of Amendment to the
Organization Certificate providing for an increase in capital stock – filed September 26, 1997
Certificate of
Amendment to the Organization Certificate providing for an increase in capital stock – filed December 29, 1997
Certificate of Amendment to the Organization Certificate providing for an increase in capital stock – filed March 26, 1998
Certificate of Amendment to the Organization Certificate providing for an increase in capital stock – filed
June 23, 1998
Page 4 of 5
New York State
Department of Financial Services
Restated Organization Certificate - filed August 31, 1998
Certificate of Amendment to the Organization Certificate providing for an increase in capital stock – filed September 25,
1998
Certificate of Amendment to the Organization Certificate providing for an increase in capital stock – filed
December 18, 1998
Certificate of Amendment to the Organization Certificate providing for a change in the number of
directors – filed September 3, 1999
Certificate of Amendment of the Organization Certificate providing for a
change of name to DEUTSCHE BANK TRUST COMPANY AMERICAS – filed March 14, 2002; and
THAT, no amendments to its Restated Organization Certificate have been filed in the Office of the Superintendent of
Financial Services except those set forth above; and
I DO FURTHER CERTIFY THAT, DEUTSCHE BANK TRUST COMPANY
AMERICAS is validly existing as a banking organization with its principal office and place of business located at 60 Wall Street, New York, New York.
WITNESS, my hand and official seal of the Department of Financial Services at the City of New York,
this 10th day of August in the Year two thousand and
twelve.
|
|
| Deputy Superintendent Licensed Financial Services |
|
| State of New York
County of New York |
|
| Sworn to and subscribed before me this 10th
day of August 2012. |
|
|
|
| CHRISTINE M. TOMCZAK Notary Public, State of New York No. 02TO6071549
Qualified in Suffolk County Commission Expires March 18, 2014 |
Page 5 of 5
EXHIBIT 2
CERTIFICATE OF AUTHORITY
Exhibit 2
EXHIBIT 3
AUTHORIZATION OF THE TRUSTEE
3
State of New York
Banking Department
I, DAVID S. FREDSALL, Deputy Superintendent of Banks of the State of New York, DO HEREBY CERTIFY:
THAT, DEUTSCHE BANK TRUST COMPANY AMERICAS, is a corporation duly organized and existing under the laws of
the State of New York and has its principal office and place of business at 60 Wall Street, New York, New York. Such corporation is validly existing as a banking organization under the Banking Law of the State of New York. The
authorization certificate of such corporation has not been revoked or suspended and such corporation is a subsisting trust company under the supervision of this Department.
WITNESS, my hand and official seal of the Banking Department at the City of New York, this
17th day of March in the Year two thousand and nine.
|
|
| Deputy Superintendent of Banks |
EXHIBIT 4
EXISTING BY-LAWS OF DEUTSCHE BANK TRUST COMPANY AMERICAS
Exhibit 4
DEUTSCHE BANK TRUST COMPANY AMERICAS
BY-LAWS
JULY 24, 2014
BY-LAWS
OF
DEUTSCHE BANK TRUST COMPANY AMERICAS
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. The annual meeting of the stockholders of this Company shall be held at the office of the Company in the Borough of Manhattan, City of New York, in January of each year, for the election of
directors and such other business as may properly come before said meeting.
SECTION 2. Special meetings of stockholders other
than those regulated by statute may be called at any time by a majority of the directors. It shall be the duty of the Chairman of the Board, the Chief Executive Officer, the President or any Co-President to call such meetings whenever requested in
writing to do so by stockholders owning a majority of the capital stock.
SECTION 3. At all meetings of stockholders, there
shall be present, either in person or by proxy, stockholders owning a majority of the capital stock of the Company, in order to constitute a quorum, except at special elections of directors, as provided by law, but less than a quorum shall have
power to adjourn any meeting.
SECTION 4. The Chairman of the Board or, in his absence, the Chief Executive Officer or, in his
absence, the President or any Co-President or, in their absence, the senior officer present, shall preside at meetings of the stockholders and shall direct the proceedings and the order of business. The Secretary shall act as secretary of such
meetings and record the proceedings.
ARTICLE II
DIRECTORS
SECTION 1. The affairs of the Company shall be managed
and its corporate powers exercised by a Board of Directors consisting of such number of directors, but not less than seven nor more than fifteen, as may from time to time be fixed by resolution adopted by a majority of the directors then in office,
or by the stockholders. In the event of any increase in the number of directors, additional directors may be elected within the limitations so fixed, either by the stockholders or within the limitations imposed by law, by a majority of directors
then in office. One-third of the number of directors, as fixed from time to time, shall constitute a quorum. Any one or more members of the Board of Directors or any Committee thereof may participate in a meeting of the Board of Directors or
Committee thereof by means of a conference telephone, video conference or similar communications equipment which allows all persons participating in the meeting to hear each other at the same time. Participation by such means shall constitute
presence in person at such a meeting.
1
All directors hereafter elected shall hold office until the next annual meeting of the
stockholders and until their successors are elected and have qualified.
No Officer-Director who shall have attained age 65,
or earlier relinquishes his responsibilities and title, shall be eligible to serve as a director.
SECTION 2. Vacancies not
exceeding one-third of the whole number of the Board of Directors may be filled by the affirmative vote of a majority of the directors then in office, and the directors so elected shall hold office for the balance of the unexpired term.
SECTION 3. The Chairman of the Board shall preside at meetings of the Board of Directors. In his absence, the Chief Executive Officer or,
in his absence the President or any Co-President or, in their absence such other director as the Board of Directors from time to time may designate shall preside at such meetings.
SECTION 4. The Board of Directors may adopt such Rules and Regulations for the conduct of its meetings and the management of the affairs
of the Company as it may deem proper, not inconsistent with the laws of the State of New York, or these By-Laws, and all officers and employees shall strictly adhere to, and be bound by, such Rules and Regulations.
SECTION 5. Regular meetings of the Board of Directors and its Executive Committee shall be held as often as may be required under
applicable law. Special meetings of the Board of Directors may be called upon at least two days’ notice whenever it may be deemed proper by the Chairman of the Board, or the Chief Executive Officer, or the President or any Co-President, or in
their absence, by such other director as the Board of Directors may have designated pursuant to Section 3 of this Article, and shall be called upon like notice whenever any three of the directors so request in writing.
SECTION 6. The compensation of directors as such or as members of committees shall be fixed from time to time by resolution of the Board
of Directors.
ARTICLE III
COMMITTEES
SECTION 1. There shall be an Executive Committee of the
Board consisting of not less than five directors who shall be appointed annually by the Board of Directors. The Chairman of the Board shall preside at meetings of the Executive Committee. In his absence, the Chief Executive Officer or, in his
absence, the President or any Co-President or, in their absence, such other member of the Committee as the Committee from time to time may designate shall preside at such meetings.
2
The Executive Committee shall possess and exercise to the extent permitted by law all of the
powers of the Board of Directors, except when the latter is in session, and shall keep minutes of its proceedings, which shall be presented to the Board of Directors at its next subsequent meeting. All acts done and powers and authority conferred by
the Executive Committee from time to time shall be and be deemed to be, and may be certified as being, the act and under the authority of the Board of Directors.
A majority of the Committee shall constitute a quorum, but the Committee may act only by the concurrent vote of not less than one-third of its members, at least one of who must be a director other than an
officer. Any one or more directors, even though not members of the Executive Committee, may attend any meeting of the Committee, and the member or members of the Committee present, even though less than a quorum, may designate any one or more of
such directors as a substitute or substitutes for any absent member or members of the Committee, and each such substitute or substitutes shall be counted for quorum, voting, and all other purposes as a member or members of the Committee.
SECTION 2. There shall be an Audit Committee appointed annually by resolution adopted by a majority of the entire Board of Directors
which shall consist of such number of directors, who are not also officers of the Company, as may from time to time be fixed by resolution adopted by the Board of Directors. The Chairman shall be designated by the Board of Directors, who shall also
from time to time fix a quorum for meetings of the Committee. Such Committee shall conduct the annual directors’ examinations of the Company as required by the New York State Banking Law; shall review the reports of all examinations made of the
Company by public authorities and report thereon to the Board of Directors; and shall report to the Board of Directors such other matters as it deems advisable with respect to the Company, its various departments and the conduct of its operations.
In the performance of its duties, the Audit Committee may employ or retain, from time to time, expert assistants, independent
of the officers or personnel of the Company, to make studies of the Company’s assets and liabilities as the Committee may request and to make an examination of the accounting and auditing methods of the Company and its system of internal
protective controls to the extent considered necessary or advisable in order to determine that the operations of the Company, including its fiduciary departments, are being audited by the General Auditor in such a manner as to provide prudent and
adequate protection. The Committee also may direct the General Auditor to make such investigation as it deems necessary or advisable with respect to the Company, its various departments and the conduct of its operations. The Committee shall hold
regular quarterly meetings and during the intervals thereof shall meet at other times on call of the Chairman.
SECTION 3. The
Board of Directors shall have the power to appoint any other Committees as may seem necessary, and from time to time to suspend or continue the powers and duties of such Committees. Each Committee appointed pursuant to this Article shall serve at
the pleasure of the Board of Directors.
3
ARTICLE IV
OFFICERS
SECTION 1. The Board of Directors shall elect from among
their number a Chairman of the Board and a Chief Executive Officer; and shall also elect a President, or two or more Co-Presidents, and may also elect, one or more Vice Chairmen, one or more Executive Vice Presidents, one or more Managing Directors,
one or more Senior Vice Presidents, one or more Directors, one or more Vice Presidents, one or more General Managers, a Secretary, a Controller, a Treasurer, a General Counsel, a General Auditor, a General Credit Auditor, who need not be directors.
The officers of the corporation may also include such other officers or assistant officers as shall from time to time be elected or appointed by the Board. The Chairman of the Board or the Chief Executive Officer or, in their absence, the President
or any Co-President, or any Vice Chairman, may from time to time appoint assistant officers. All officers elected or appointed by the Board of Directors shall hold their respective offices during the pleasure of the Board of Directors, and all
assistant officers shall hold office at the pleasure of the Board or the Chairman of the Board or the Chief Executive Officer or, in their absence, the President, or any Co-President or any Vice Chairman. The Board of Directors may require any and
all officers and employees to give security for the faithful performance of their duties.
SECTION 2. The Board of Directors
shall designate the Chief Executive Officer of the Company who may also hold the additional title of Chairman of the Board, or President, or any Co-President, and such person shall have, subject to the supervision and direction of the Board of
Directors or the Executive Committee, all of the powers vested in such Chief Executive Officer by law or by these By-Laws, or which usually attach or pertain to such office. The other officers shall have, subject to the supervision and direction of
the Board of Directors or the Executive Committee or the Chairman of the Board or, the Chief Executive Officer, the powers vested by law or by these By-Laws in them as holders of their respective offices and, in addition, shall perform such other
duties as shall be assigned to them by the Board of Directors or the Executive Committee or the Chairman of the Board or the Chief Executive Officer.
The General Auditor shall be responsible, through the Audit Committee, to the Board of Directors for the determination of the program of the internal audit function and the evaluation of the adequacy of
the system of internal controls. Subject to the Board of Directors, the General Auditor shall have and may exercise all the powers and shall perform all the duties usual to such office and shall have such other powers as may be prescribed or
assigned to him from time to time by the Board of Directors or vested in him by law or by these By-Laws. He shall perform such other duties and shall make such investigations, examinations and reports as may be prescribed or required by the Audit
Committee. The General Auditor shall have unrestricted access to all records and premises of the Company and shall delegate such authority to his subordinates. He shall have the duty to report to the Audit Committee on all matters concerning the
internal audit program and the adequacy of the system of internal controls of the Company which he deems advisable or which the Audit Committee may request. Additionally, the General Auditor shall have the duty of reporting independently of all
officers of the Company to the Audit Committee at least quarterly on any matters concerning the internal audit program and the adequacy of the system of internal controls of the Company that should be brought to the
4
attention of the directors except those matters responsibility for which has been vested in the General Credit Auditor. Should the General Auditor deem any matter to be of special immediate
importance, he shall report thereon forthwith to the Audit Committee. The General Auditor shall report to the Chief Financial Officer only for administrative purposes.
The General Credit Auditor shall be responsible to the Chief Executive Officer and, through the Audit Committee, to the Board of Directors for the systems of internal credit audit, shall perform such
other duties as the Chief Executive Officer may prescribe, and shall make such examinations and reports as may be required by the Audit Committee. The General Credit Auditor shall have unrestricted access to all records and may delegate such
authority to subordinates.
SECTION 3. The compensation of all officers shall be fixed under such plan or plans of position
evaluation and salary administration as shall be approved from time to time by resolution of the Board of Directors.
SECTION
4. The Board of Directors, the Executive Committee, the Chairman of the Board, the Chief Executive Officer or any person authorized for this purpose by the Chief Executive Officer, shall appoint or engage all other employees and agents and fix their
compensation. The employment of all such employees and agents shall continue during the pleasure of the Board of Directors or the Executive Committee or the Chairman of the Board or the Chief Executive Officer or any such authorized person; and the
Board of Directors, the Executive Committee, the Chairman of the Board, the Chief Executive Officer or any such authorized person may discharge any such employees and agents at will.
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 1. The Company shall, to the fullest extent permitted by Section 7018 of the New York Banking Law, indemnify any person who is or was made, or threatened to be made, a party to an action or
proceeding, whether civil or criminal, whether involving any actual or alleged breach of duty, neglect or error, any accountability, or any actual or alleged misstatement, misleading statement or other act or omission and whether brought or
threatened in any court or administrative or legislative body or agency, including an action by or in the right of the Company to procure a judgment in its favor and an action by or in the right of any other corporation of any type or kind, domestic
or foreign, or any partnership, joint venture, trust, employee benefit plan or other enterprise, which any director or officer of the Company is servicing or served in any capacity at the request of the Company by reason of the fact that he, his
testator or intestate, is or was a director or officer of the Company, or is serving or served such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise in any capacity, against judgments, fines, amounts
paid in settlement, and costs, charges and expenses, including attorneys’ fees, or any appeal therein; provided, however, that no indemnification shall be provided to any such person if a judgment or other final adjudication adverse to the
director or officer establishes that (i) his acts were committed in bad faith or were the result of active and
5
deliberate dishonesty and, in either case, were material to the cause of action so adjudicated, or (ii) he personally gained in fact a financial profit or other advantage to which he was not
legally entitled.
SECTION 2. The Company may indemnify any other person to whom the Company is permitted to provide
indemnification or the advancement of expenses by applicable law, whether pursuant to rights granted pursuant to, or provided by, the New York Banking Law or other rights created by (i) a resolution of stockholders, (ii) a resolution of
directors, or (iii) an agreement providing for such indemnification, it being expressly intended that these By-Laws authorize the creation of other rights in any such manner.
SECTION 3. The Company shall, from time to time, reimburse or advance to any person referred to in Section 1 the funds necessary for
payment of expenses, including attorneys’ fees, incurred in connection with any action or proceeding referred to in Section 1, upon receipt of a written undertaking by or on behalf of such person to repay such amount(s) if a judgment or
other final adjudication adverse to the director or officer establishes that (i) his acts were committed in bad faith or were the result of active and deliberate dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he personally gained in fact a financial profit or other advantage to which he was not legally entitled.
SECTION 4. Any director or officer of the Company serving (i) another corporation, of which a majority of the shares entitled to vote in the election of its directors is held by the Company, or
(ii) any employee benefit plan of the Company or any corporation referred to in clause (i) in any capacity shall be deemed to be doing so at the request of the Company. In all other cases, the provisions of this Article V will apply
(i) only if the person serving another corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise so served at the specific request of the Company, evidenced by a written communication signed by the Chairman
of the Board, the Chief Executive Officer, the President or any Co-President, and (ii) only if and to the extent that, after making such efforts as the Chairman of the Board, the Chief Executive Officer, the President or any Co-President shall
deem adequate in the circumstances, such person shall be unable to obtain indemnification from such other enterprise or its insurer.
SECTION 5. Any person entitled to be indemnified or to the reimbursement or advancement of expenses as a matter of right pursuant to this Article V may elect to have the right to indemnification (or
advancement of expenses) interpreted on the basis of the applicable law in effect at the time of occurrence of the event or events giving rise to the action or proceeding, to the extent permitted by law, or on the basis of the applicable law in
effect at the time indemnification is sought.
SECTION 6. The right to be indemnified or to the reimbursement or advancement
of expense pursuant to this Article V (i) is a contract right pursuant to which the person entitled thereto may bring suit as if the provisions hereof were set forth in a separate written contract between the Company and the director or
officer, (ii) is intended to be retroactive and shall be available with respect to events occurring prior to the adoption hereof, and (iii) shall continue to exist after the rescission or restrictive modification hereof with respect to
events occurring prior thereto.
6
SECTION 7. If a request to be indemnified or for the reimbursement or advancement of
expenses pursuant hereto is not paid in full by the Company within thirty days after a written claim has been received by the Company, the claimant may at any time thereafter bring suit against the Company to recover the unpaid amount of the claim
and, if successful in whole or in part, the claimant shall be entitled also to be paid the expenses of prosecuting such claim. Neither the failure of the Company (including its Board of Directors, independent legal counsel, or its stockholders) to
have made a determination prior to the commencement of such action that indemnification of or reimbursement or advancement of expenses to the claimant is proper in the circumstance, nor an actual determination by the Company (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant is not entitled to indemnification or to the reimbursement or advancement of expenses, shall be a defense to the action or create a presumption that the claimant is not so
entitled.
SECTION 8. A person who has been successful, on the merits or otherwise, in the defense of a civil or criminal
action or proceeding of the character described in Section 1 shall be entitled to indemnification only as provided in Sections 1 and 3, notwithstanding any provision of the New York Banking Law to the contrary.
ARTICLE VI
SEAL
SECTION 1. The Board of Directors shall provide a seal for the Company, the counterpart dies of which shall be in the charge of the Secretary of the Company and such officers as the Chairman of the Board,
the Chief Executive Officer or the Secretary may from time to time direct in writing, to be affixed to certificates of stock and other documents in accordance with the directions of the Board of Directors or the Executive Committee.
SECTION 2. The Board of Directors may provide, in proper cases on a specified occasion and for a specified transaction or transactions,
for the use of a printed or engraved facsimile seal of the Company.
ARTICLE VII
CAPITAL STOCK
SECTION 1. Registration of transfer of shares shall only be made upon the books of the Company by the registered holder in person, or by power of attorney, duly executed, witnessed and filed with
the Secretary or other proper officer of the Company, on the surrender of the certificate or certificates of such shares properly assigned for transfer.
7
ARTICLE VIII
CONSTRUCTION
SECTION 1. The masculine gender, when appearing in
these By-Laws, shall be deemed to include the feminine gender.
ARTICLE IX
AMENDMENTS
SECTION 1. These By-Laws may be altered, amended or added to by the Board of Directors at any meeting, or by the stockholders at any annual or special meeting, provided notice thereof has been given.
8
EXHIBIT 6
CONSENT OF BANKERS TRUST COMPANY
Exhibit 6
March 7, 1980
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In accordance with
Section 321(b) of the Trust Indenture Act of 1939, Bankers Trust Company does hereby consent as a condition precedent to the qualification of the Indenture dated as of March 1, 1980 for the Crystal Oil Company and any and of all future
indentures to be qualified under the Act for which Bankers Trust Company will act as Trustee, that all reports of examination by Federal and State authorities including 1) the Federal Reserve Bank of New York, 2) the Federal Deposit Insurance
Corporation and the New York State Banking Department may be furnished by such authorities to the Commission upon request therefor for the purposes and upon the conditions set forth in said Section 321.
|
|
|
| Bankers Trust Company |
|
|
| By |
|
|
|
|
Richard S. Denny |
|
|
Secretary |
EXHIBIT 7
REPORT OF CONDITION
|
|
|
|
|
|
|
Board of Governors of the Federal Reserve System |
|
OMB Number 7100-0036 |
|
|
Federal Deposit Insurance Corporation |
|
OMB Number 3064-0052 |
|
|
Office of the Comptroller of the Currency |
|
OMB Number 1557-0081 |
|
|
|
|
Approval expires March 31, 2018 |
|
|
|
|
Page 1 of 84 |
Federal Financial Institutions Examination Council
This report is required by law: 12 U.S.C. § 324 (State member banks); 12 U.S.C. §1817 (State
nonmember banks); 12 U.S.C. §161 (National banks); and 12 U.S.C. §1464 (Savings associations).
Unless the context indicates otherwise, the term “bank” in this report form refers to both banks
and savings associations.
This report form is to be filed by banks with branches and consolidated subsidiaries in U.S. territories and
possessions, Edge or Agreement subsidiaries, foreign branches, consolidated foreign subsidiaries, or International Banking Facilities.
NOTE: Each bank’s board of directors and senior management are responsible for establishing and
maintaining an effective system of internal control, including controls over the Reports of Condition and Income. The Reports of Condition and Income are to be prepared in accordance with federal regulatory authority instructions. The Reports of
Condition and Income must be signed by the Chief Financial Officer (CFO) of the reporting bank (or by the individual performing an equivalent function) and attested to by not less than two directors (trustees) for state nonmember banks and three
directors for state member banks, national banks, and savings associations.
I, the undersigned CFO (or equivalent) of the named bank, attest
that the Reports of Condition and Income (including the supporting
schedules) for this report date have been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and are true and correct to the best of my knowledge
and belief.
We, the undersigned directors (trustees), attest to the correctness of the Reports of Condition and Income (including the
supporting schedules) for this report date and declare that the Reports of Condition and Income have been examined by us and to the best of our knowledge and belief have been prepared in conformance with the instructions issued by the appropriate
Federal regulatory authority and are true and correct.
|
|
| |
| Signature of Chief Financial Officer (or Equivalent) |
|
| |
| Date of Signature |
|
|
| |
| Director (Trustee) |
|
| |
| Director (Trustee) |
|
| |
| Director (Trustee) |
Submission of Reports
Each bank must file its Reports of Condition and Income (Call Report) data by either:
| (a) |
Using computer software to prepare its Call Report and then submitting the report data directly to the FFIEC’s Central Data Repository (CDR), an Internet-based
system for data collection (https://cdr.ffiec.gov/cdr/), or |
| (b) |
Completing its Call Report in paper form and arranging with a software vendor or another party to convert the data into the electronic format that can be processed by
the CDR. The software vendor or other party then must electronically submit the bank’s data file to the CDR. |
For technical
assistance with submissions to the CDR, please contact the CDR Help Desk by telephone at (888) CDR-3111, by fax at (703) 774-3946, or by e-mail at CDR.Help@ffiec.gov.
|
|
|
|
|
| FDIC Certificate Number |
|
623 |
|
|
|
|
(RSSD 9050) |
|
|
To fulfill the signature and attestation requirement for the Reports of Condition and Income for this
report date, attach your bank’s completed signature page (or a photocopy or a computer generated version of this page) to the hard-copy record of the data file submitted to the CDR that your bank must place in its files.
The appearance of your bank’s hard-copy record of the submitted data file need not match exactly the appearance of the FFIEC’s sample report
forms, but should show at least the caption of each Call Report item and the reported amount.
|
|
|
|
|
| DEUTSCHE BANK TRUST COMPANY AMERICAS |
| Legal Title of Bank (RSSD 9017) |
|
| New York |
| City (RSSD 9130) |
|
|
|
|
|
|
|
| NY |
|
|
|
10005 |
| State Abbreviation (RSSD
9200) |
|
|
|
ZIP Code (RSSD
9220) |
The estimated average burden associated with this information collection is 50.4 hours per respondent and is estimated to vary from 20 to 775 hours per
response, depending on circumstances. Burden estimates include the time for reviewing instructions, gathering and maintaining data in the required form, and completing the information collection, but exclude the time for compiling and maintaining
business records in the normal course of a respondent’s activities. A Federal agency may not conduct or sponsor, and an organization (or a person) is not required to respond to a collection of information, unless it displays a currently valid
OMB control number. Comments concerning the accuracy of this burden estimate and suggestions for reducing this burden should be directed to the Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503, and
to one of the following: Secretary, Board of Governors of the Federal Reserve System, 20th and C Streets, NW, Washington, DC 20551; Legislative and Regulatory Analysis Division, Office of the Comptroller of the Washington, DC 20219; Assistant
Executive Secretary, Federal Deposit Insurance Corporation, Washington, DC 20429.
09/2015
FFIEC 031
Page 16 of 84
RC-1
Consolidated Report of Condition for Insured Banks and Savings Associations for September 30, 2015
All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding as of
the last business day of the quarter.
Schedule RC—Balance Sheet
Dollar Amounts in Thousands
RCFD
Tril | Bil | Mil | Thou
Assets
1. Cash and balances due from depository institutions (from Schedule RC-A):
a. Noninterest-bearing balances and currency and coin (1)
0081
132,000
1.a.
b Interest-bearing balances (2)
0071
14,934,000 1.b.
2. Securities:
a. Held-to-maturity securities
(from Schedule RC-B, column A)
1754
0
2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)
1773
0
2.b.
3. Federal funds sold and securities purchased under agreements to resell:
a. Federal funds sold in domestic offices
RCON
B987
0
3.a.
b. Securities purchased under agreements to
resell (3)
RCFD
B989
19,603,000
3.b.
4. Loans and lease financing receivables (from Schedule RC-C):
RCFD
a. Loans and leases held for sale
5369
0
4.a.
b. Loans and leases, net of unearned income
B528 18,105,000
4.b.
c. LESS: Allowance for loan and lease losses
3123 27,000
4.c.
d. Loans and leases, net of unearned income and allowance (item 4.b minus 4.c)
B529
18,078,000
4.d.
5. Trading assets (from Schedule RC-D)
3545
7,000
5.
6. Premises and fixed assets (including capitalized leases)
2145
16,000
6.
7. Other real estate owned (from Schedule RC-M)
2150
0
7.
8. Investments in unconsolidated subsidiaries and associated companies
2130
0
8.
9. Direct and indirect investments in real estate ventures
10. Intangible assets:
3656
0
9.
a. Goodwill
3163
0
10.a.
b. Other intangible assets (from Schedule
RC-M)
0426
32,000
10.b.
11. Other assets (from Schedule RC-F)
2160
613,000 11.
12. Total assets (sum of items 1 through 11)
2170
53,415,000 12.
Liabilities
13. Deposits:
a. In domestic offices (sum of
totals of columns A and C from Schedule RC-E, Part I)
RCON
2200
42,294,000
13.a.
(1) Noninterest-bearing (4)
RCON 6631 25,743,000
13.a.(1)
(2) Interest-bearing
RCON 6636 16,551,000
13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs
RCFN
(from Schedule RC-E, Part II)
2200
0
13.b.
(1) Noninterest-bearing
RCFN 6631 0
13.b.(1)
(2) Interest-bearing
RCFN 6636 0
13.b.(2)
14. Federal funds purchased and
securities sold under agreements to repurchase:
a. Federal funds purchased in domestic offices (5)
RCON
B993
1,305,000
14.a.
b. Securities sold under agreements to repurchase (6)
RCFD
B995
0
14.b.
15. Trading liabilities (from Schedule
RC-D)
RCFD
3548
35,000 15.
16. Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases) (from Schedule RC-M)
RCFD
3190
22,000 16.
17. and 18. Not applicable
1. Includes cash items
in process of collection and unposted debits.
2. Includes time certificates of deposit not held for trading.
3. Includes all securities resale agreements in domestic and foreign offices, regardless of maturity.
4. Includes noninterest-bearing demand, time, and savings deposits.
5. Report overnight Federal Home Loan Bank advances in Schedule RC, item 16, “Other borrowed money.”
6. Includes all securities repurchase agreements in domestic and foreign offices, regardless of maturity.
09/2015
FFIEC 031
Page 17 of 84
RC-2
Schedule RC—Continued
Dollar Amounts in Thousands
RCFD
Tril | Bil | Mil | Thou
Liabilities—Continued
19. Subordinated notes
and debentures (1)
3200
0 19.
20. Other liabilities (from Schedule RC-G)
2930
1,050,000 20.
21. Total liabilities (sum of items
13 through 20)
2948
44,706,000 21.
22. Not applicable
Equity Capital
Bank Equity Capital
23. Perpetual preferred stock
and related surplus
3838
0 23.
24. Common stock
3230
2,127,000 24.
25. Surplus (exclude all surplus
related to preferred stock)
3839
600,000 25.
26. a. Retained earnings
3632
5,984,000
26.a.
b. Accumulated other comprehensive income (2)
B530
(2,000)
26.b.
c. Other equity capital components (3)
A130
0 26.c.
27. a. Total bank equity capital (sum of items 23 through 26.c)
3210
8,709,000
27.a.
b. Noncontrolling (minority) interests in consolidated subsidiaries
3000
0
27.b.
28. Total equity capital (sum of items 27.a and 27.b)
G105
8,709,000 28.
29. Total liabilities and equity capital (sum of items 21 and 28)
3300
53,415,000 29.
Memoranda
To be reported with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the most comprehensive level of
auditing work performed for the bank by independent external auditors as of any date during 2014
RCFD
Number
6724
NA
M.1.
1 = Independent audit of the bank conducted in accordance with
generally accepted auditing standards by a certified public accounting firm which submits a report on the bank
2 = Independent audit of the bank’s parent holding company conducted
in accordance with generally accepted auditing standards by a certified public accounting firm which submits a report on the consolidated holding company (but not on the bank separately)
3 = Attestation on bank management’s assertion on the effectiveness
of the bank’s internal control over financial reporting by a certified public accounting firm
4 = Directors’ examination of the bank conducted in accordance
with generally accepted auditing standards by a certified public accounting firm (may be required by state-chartering
authority)
5 = Directors’ examination of the bank performed by other external
auditors (may be required by state-chartering authority)
6 = Review of the bank’s financial statements by external auditors
7 = Compilation of the bank’s financial statements by external
auditors
8 = Other audit procedures (excluding tax preparation work)
9 = No external audit work
To be reported with
the March Report of Condition.
RCON
MM/DD
2. Bank’s fiscal year-end date
8678NA
M.2.
1. Includes limited-life preferred stock and
related surplus.
2. Includes, but is not limited to, net unrealized holding gains (losses) on
available-for-sale securities, accumulated net gains (losses) on cash flow hedges, cumulative foreign currency translation adjustments, and accumulated defined benefit pension and other postretirement plan adjustments.
3. Includes treasury stock and unearned Employee Stock Ownership Plan shares.
03/2015
Exhibit 25.2
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)
Tara Aiken
Banking Officer
1100 North Market Street
Wilmington, Delaware 19890
(302) 651-1592
(Name, address and telephone number of agent for service)
The Bank of
New York Mellon Corporation
(Exact name of obligor as specified in its charter)
|
|
|
| Delaware |
|
13-2614959 |
| (State of incorporation) |
|
(I.R.S. employer identification no.) |
|
|
| 225 Liberty Street New York, New York |
|
10286 |
| (Address of principal executive offices) |
|
(Zip Code) |
Senior Subordinated Debt 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 9th day of February, 2016.
|
|
|
|
|
| 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 director’s 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 director’s 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 bank’s
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 association’s 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 association’s 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 association’s 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
(effective as of January 1, 2012)
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 o’clock 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:
| |
(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 of the notifying shareholder; and |
| |
(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 association’s 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:
| |
(1) |
Authorize distributions of assets or dividends; |
| |
(2) |
Approve action required to be approved by shareholders; |
| |
(3) |
Fill vacancies on the board of directors or any of its committees; |
| |
(4) |
Amend articles of association; |
| |
(5) |
Adopt, amend or repeal bylaws; or |
| |
(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 association’s 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 bank’s 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 association’s 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 shareholder’s 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:
| |
(1) |
The types of nominees to which it applies; |
| |
(2) |
The rights or privileges that the association recognizes in a beneficial owner; |
| |
(3) |
How the nominee may request the association to recognize the beneficial owner as the shareholder; |
| |
(4) |
The information that must be provided when the procedure is selected; |
| |
(5) |
The period over which the association will continue to recognize the beneficial owner as the shareholder; |
| |
(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 association’s 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 association’s 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.
|
|
|
|
|
|
|
|
|
|
|
|
|
WILMINGTON TRUST, NATIONAL ASSOCIATION |
|
|
|
|
| Dated: February 9th, 2016 |
|
|
|
By: |
|
/s/ W. Thomas Morris II |
|
|
|
|
|
|
Name: |
|
W. Thomas Morris II |
|
|
|
|
|
|
Title: |
|
Vice President |
EXHIBIT 7
REPORT OF CONDITION
WILMINGTON TRUST, NATIONAL ASSOCIATION
As of the close of business on September 30, 2015
|
|
|
|
|
|
Thousands of Dollars |
|
| ASSETS |
|
|
|
|
| Cash and balances due from depository institutions: |
|
|
1,406,772 |
|
| Securities: |
|
|
5,197 |
|
| Federal funds sold and securities purchased under agreement to resell: |
|
|
0 |
|
| Loans and leases held for sale: |
|
|
0 |
|
| Loans and leases net of unearned income, allowance: |
|
|
381,124 |
|
| Premises and fixed assets: |
|
|
6,236 |
|
| Other real estate owned: |
|
|
74 |
|
| Investments in unconsolidated subsidiaries and associated companies: |
|
|
0 |
|
| Direct and indirect investments in real estate ventures: |
|
|
0 |
|
| Intangible assets: |
|
|
863 |
|
| Other assets: |
|
|
46,446 |
|
| Total Assets: |
|
|
1,846,712 |
|
|
|
|
|
|
|
Thousands of Dollars |
|
| LIABILITIES |
|
|
|
|
| Deposits |
|
|
1,324,519 |
|
| Federal funds purchased and securities sold under agreements to repurchase |
|
|
18,000 |
|
| Other borrowed money: |
|
|
0 |
|
| Other Liabilities: |
|
|
27,563 |
|
| Total Liabilities |
|
|
1,370,082 |
|
|
|
|
|
|
|
Thousands of Dollars |
|
| EQUITY CAPITAL |
|
|
|
|
| Common Stock |
|
|
1,000 |
|
| Surplus |
|
|
389,234 |
|
| Retained Earnings |
|
|
86,869 |
|
| Accumulated other comprehensive income |
|
|
(473 |
) |
| Total Equity Capital |
|
|
476,630 |
|
| Total Liabilities and Equity Capital |
|
|
1,846,712 |
|
Exhibit 25.3
UNITED STATES
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) |
DEUTSCHE BANK
TRUST COMPANY AMERICAS
(formerly BANKERS TRUST COMPANY)
(Exact name of trustee as specified in its charter)
|
|
|
| NEW YORK |
|
13-4941247 |
| (Jurisdiction of Incorporation or
organization if not a U.S. national bank) |
|
(I.R.S. Employer
Identification no.) |
|
|
| 60 WALL STREET |
|
|
| NEW YORK, NEW YORK |
|
10005 |
| (Address of principal executive offices) |
|
(Zip Code) |
Deutsche Bank Trust Company Americas
Attention: Catherine Wang
Legal Department
60 Wall
Street, 36th Floor
New York, New York 10005
(212) 250 – 7544
(Name, address and telephone number of agent for service)
THE BANK OF NEW YORK MELLON
CORPORATION
(Exact name of obligor as specified in its charter)
|
|
|
| DELAWARE |
|
13-2614959 |
| (State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. Employer
Identification No.) |
|
|
| 225 LIBERTY STREET |
|
|
| NEW YORK, NEW YORK |
|
10286 |
| (Address of principal executive offices) |
|
(Zip code) |
SENIOR 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. |
|
|
|
| Name |
|
Address |
|
|
| Federal Reserve Bank (2nd District) |
|
New York, NY |
| Federal Deposit Insurance Corporation |
|
Washington, D.C. |
| New York State Banking Department |
|
Albany, NY |
| |
(b) |
Whether it is authorized to exercise corporate trust powers. |
Yes.
| Item 2. -15. |
Not Applicable |
| Item 16. |
List of Exhibits. |
|
|
|
|
|
| Exhibit 1 - |
|
Restated Organization Certificate of Bankers Trust Company dated August 31, 1998; Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated September 25, 1998; Certificate of Amendment of the
Organization Certificate of Bankers Trust Company dated December 18, 1998; Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated September 3, 1999; and Certificate of Amendment of the Organization
Certificate of Bankers Trust Company dated March 14, 2002, incorporated herein by reference to Exhibit 1 filed with Form T-1 Statement, Registration No. 333-157637-01. |
|
|
| Exhibit 2 - |
|
Certificate of Authority to commence business, incorporated herein by reference to Exhibit 2 filed with Form T-1 Statement, Registration No. 333-157637-01. |
|
|
| Exhibit 3 - |
|
Authorization of the Trustee to exercise corporate trust powers, incorporated herein by reference to Exhibit 3 filed with Form T-1 Statement, Registration No. 333- 157637-01. |
|
|
| Exhibit 4 - |
|
Existing By-Laws of Deutsche Bank Trust Company Americas, dated July 24, 2014, incorporated herein by reference to Exhibit 4 filed with Form T-1 Statement, Registration No. 333-157637-01. |
|
|
| Exhibit 5 - |
|
Not applicable. |
|
|
| Exhibit 6 - |
|
Consent of Bankers Trust Company required by Section 321(b) of the Act, incorporated herein by reference to Exhibit 6 filed with Form T-1 Statement, Registration No. 333-157637-01. |
|
|
| Exhibit 7 - |
|
A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority. |
|
|
| Exhibit 8 - |
|
Not Applicable. |
|
|
| Exhibit 9 - |
|
Not Applicable. |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Deutsche Bank Trust Company Americas, a corporation
organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on this 9th day of February, 2016.
|
|
|
|
|
|
|
| DEUTSCHE BANK TRUST COMPANY AMERICAS |
|
|
|
|
|
By: |
|
/s/ Carol Ng |
|
|
|
|
Name: |
|
Carol Ng |
|
|
|
|
Title: |
|
Vice President |
EXHIBIT 7
REPORT OF CONDITION
|
|
|
|
|
|
|
Board of Governors of the Federal Reserve System |
|
OMB Number 7100-0036 |
|
|
Federal Deposit Insurance Corporation |
|
OMB Number 3064-0052 |
|
|
Office of the Comptroller of the Currency |
|
OMB Number 1557-0081 |
|
|
|
|
Approval expires March 31, 2018 |
|
|
|
|
Page 1 of 84 |
Federal Financial Institutions Examination Council
This report is required by law: 12 U.S.C. § 324 (State member banks); 12 U.S.C. §1817 (State nonmember
banks); 12 U.S.C. §161 (National banks); and 12 U.S.C. §1464 (Savings associations).
Unless the context indicates otherwise, the term “bank” in this report form refers to both banks and
savings associations.
This report form is to be filed by banks with branches and consolidated subsidiaries in U.S. territories and possessions, Edge or
Agreement subsidiaries, foreign branches, consolidated foreign subsidiaries, or International Banking Facilities.
NOTE: Each bank’s board of directors and senior management are responsible for establishing and maintaining
an effective system of internal control, including controls over the Reports of Condition and Income. The Reports of Condition and Income are to be prepared in accordance with federal regulatory authority instructions. The Reports of Condition and
Income must be signed by the Chief Financial Officer (CFO) of the reporting bank (or by the individual performing an equivalent function) and attested to by not less than two directors (trustees) for state nonmember banks and three directors for
state member banks, national banks, and savings associations.
I, the undersigned CFO (or equivalent) of the named bank, attest that the Reports of
Condition and Income (including the supporting
schedules) for this report date have been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and are true and correct to the best of my knowledge
and belief.
We, the undersigned directors (trustees), attest to the correctness of the Reports of Condition and Income (including the supporting
schedules) for this report date and declare that the Reports of Condition and Income have been examined by us and to the best of our knowledge and belief have been prepared in conformance with the instructions issued by the appropriate Federal
regulatory authority and are true and correct.
|
|
| |
| Signature of Chief Financial Officer (or Equivalent) |
|
| |
| Date of Signature |
|
|
| |
| Director (Trustee) |
|
| |
| Director (Trustee) |
|
| |
| Director (Trustee) |
Submission of Reports
Each bank must file its Reports of Condition and Income (Call Report) data by either:
| (a) |
Using computer software to prepare its Call Report and then submitting the report data directly to the FFIEC’s Central Data Repository (CDR), an Internet-based system for data collection
(https://cdr.ffiec.gov/cdr/), or |
| (b) |
Completing its Call Report in paper form and arranging with a software vendor or another party to convert the data into the electronic format that can be processed by the CDR. The software vendor or other party then
must electronically submit the bank’s data file to the CDR. |
For technical assistance with submissions to the CDR, please contact the
CDR Help Desk by telephone at (888) CDR-3111, by fax at (703) 774-3946, or by e-mail at CDR.Help@ffiec.gov.
|
|
|
|
|
| FDIC Certificate Number |
|
623 |
|
|
|
|
(RSSD 9050) |
|
|
To fulfill the signature and attestation requirement for the Reports of Condition and Income for this report
date, attach your bank’s completed signature page (or a photocopy or a computer generated version of this page) to the hard-copy record of the data file submitted to the CDR that your bank must place in its files.
The appearance of your bank’s hard-copy record of the submitted data file need not match exactly the appearance of the FFIEC’s sample report forms,
but should show at least the caption of each Call Report item and the reported amount.
|
|
|
|
|
| DEUTSCHE BANK TRUST COMPANY AMERICAS |
| Legal Title of Bank (RSSD 9017) |
|
| New York |
| City (RSSD 9130) |
|
|
|
|
|
|
|
| NY |
|
|
|
10005 |
| State Abbreviation (RSSD 9200) |
|
|
|
ZIP Code (RSSD 9220) |
The estimated average burden associated with this information collection is 50.4 hours per respondent and is estimated to vary
from 20 to 775 hours per response, depending on circumstances. Burden estimates include the time for reviewing instructions, gathering and maintaining data in the required form, and completing the information collection, but exclude the time for
compiling and maintaining business records in the normal course of a respondent’s activities. A Federal agency may not conduct or sponsor, and an organization (or a person) is not required to respond to a collection of information, unless it
displays a currently valid OMB control number. Comments concerning the accuracy of this burden estimate and suggestions for reducing this burden should be directed to the Office of Information and Regulatory Affairs, Office of Management and Budget,
Washington, DC 20503, and to one of the following: Secretary, Board of Governors of the Federal Reserve System, 20th and C Streets, NW, Washington, DC 20551; Legislative and Regulatory Analysis Division, Office of the Comptroller of the Washington,
DC 20219; Assistant Executive Secretary, Federal Deposit Insurance Corporation, Washington, DC 20429.
09/2015
FFIEC 031
Page 16 of 84
RC-1
Consolidated Report of Condition for Insured Banks and Savings Associations for
September 30, 2015
All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding as of the last business
day of the quarter.
Schedule RC—Balance Sheet
Dollar Amounts in
Thousands
RCFD
Tril | Bil | Mil | Thou
Assets
1. Cash and balances due from depository institutions (from Schedule RC-A):
a. Noninterest-bearing balances and currency and coin (1)
0081
132,000
1.a.
b Interest-bearing balances (2)
0071
14,934,000 1.b.
2. Securities:
a. Held-to-maturity securities (from Schedule RC-B, column A)
1754
0
2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)
1773
0
2.b.
3. Federal funds sold and securities purchased under agreements to resell:
a. Federal funds
sold in domestic offices
RCON
B987
0
3.a.
b. Securities purchased under agreements to resell (3)
RCFD
B989
19,603,000
3.b.
4. Loans and lease financing receivables (from Schedule RC-C):
RCFD
a. Loans and leases held for sale
5369
0
4.a.
b. Loans and leases, net of unearned income
B528 18,105,000
4.b.
c. LESS: Allowance for loan and lease losses
3123 27,000
4.c.
d. Loans and leases, net of unearned income and allowance (item 4.b minus 4.c)
B529
18,078,000
4.d.
5. Trading assets (from Schedule RC-D)
3545
7,000
5.
6. Premises and fixed assets (including capitalized leases)
2145
16,000
6.
7. Other real estate owned (from Schedule RC-M)
2150
0
7.
8. Investments in unconsolidated subsidiaries and associated companies
2130
0
8.
9. Direct and indirect investments in real estate ventures
10. Intangible assets:
3656
0
9.
a.
Goodwill
3163
0
10.a.
b. Other intangible assets (from Schedule RC-M)
0426
32,000
10.b.
11. Other assets (from Schedule RC-F)
2160
613,000 11.
12. Total assets (sum of items 1 through 11)
2170
53,415,000 12.
Liabilities
13. Deposits:
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E,
Part I)
RCON
2200
42,294,000
13.a.
(1) Noninterest-bearing (4)
RCON 6631 25,743,000
13.a.(1)
(2) Interest-bearing
RCON 6636 16,551,000
13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs
RCFN
(from Schedule RC-E, Part II)
2200
0
13.b.
(1) Noninterest-bearing
RCFN 6631 0
13.b.(1)
(2) Interest-bearing
RCFN 6636 0
13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase:
a. Federal
funds purchased in domestic offices (5)
RCON
B993
1,305,000
14.a.
b. Securities sold under agreements to repurchase (6)
RCFD
B995
0
14.b.
15. Trading liabilities (from Schedule RC-D)
RCFD
3548
35,000 15.
16. Other borrowed money (includes mortgage indebtedness and
obligations under
capitalized leases) (from Schedule RC-M)
RCFD
3190
22,000 16.
17. and 18. Not applicable
1. Includes cash items in process of collection and unposted
debits.
2. Includes time certificates of deposit not held for trading.
3.
Includes all securities resale agreements in domestic and foreign offices, regardless of maturity.
4. Includes noninterest-bearing demand, time, and savings
deposits.
5. Report overnight Federal Home Loan Bank advances in Schedule RC, item 16, “Other borrowed money.”
6. Includes all securities repurchase agreements in domestic and foreign offices, regardless of maturity.
09/2015
FFIEC 031
Page 17 of 84
RC-2
Schedule RC—Continued
Dollar Amounts in Thousands
RCFD
Tril | Bil | Mil | Thou
Liabilities—Continued
19. Subordinated notes and debentures (1)
3200
0 19.
20. Other liabilities (from Schedule RC-G)
2930
1,050,000 20.
21. Total liabilities (sum of items 13 through 20)
2948
44,706,000 21.
22. Not applicable
Equity Capital
Bank Equity Capital
23. Perpetual preferred stock and related surplus
3838
0 23.
24. Common stock
3230
2,127,000 24.
25. Surplus (exclude all surplus related to preferred stock)
3839
600,000 25.
26. a. Retained earnings
3632
5,984,000
26.a.
b. Accumulated other comprehensive income (2)
B530
(2,000)
26.b.
c. Other equity capital components (3)
A130
0 26.c.
27. a. Total bank equity capital (sum of items 23 through 26.c)
3210
8,709,000
27.a.
b. Noncontrolling (minority) interests in consolidated subsidiaries
3000
0
27.b.
28. Total equity capital (sum of items 27.a and 27.b)
G105
8,709,000 28.
29. Total liabilities and equity capital (sum of items 21 and 28)
3300
53,415,000 29.
Memoranda
To be reported with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the most comprehensive level of auditing work performed for the bank by independent
external auditors as of any date during 2014
RCFD
Number
6724
NA
M.1.
1 = Independent audit of the bank conducted in accordance with
generally accepted auditing standards by a certified public accounting firm which submits a report on the bank
2 = Independent audit of the bank’s parent holding company conducted
in accordance with
generally accepted auditing standards by a certified public accounting firm which submits a report on the consolidated holding company (but not on the bank separately)
3 = Attestation on bank management’s assertion on the effectiveness
of the bank’s
internal control over financial reporting by a certified public accounting firm
4 = Directors’ examination of the bank conducted in accordance
with generally accepted auditing standards by a certified public accounting firm (may be required by state-chartering authority)
5 = Directors’ examination of the bank performed by other external
auditors (may be
required by state-chartering authority)
6 = Review of the bank’s financial statements by external auditors
7 = Compilation of the bank’s financial statements by external
auditors
8 = Other audit procedures (excluding tax preparation work)
9 = No external audit work
To be reported with the March Report of Condition.
RCON
MM/DD
2. Bank’s fiscal year-end date
8678NA
M.2.
1. Includes limited-life preferred stock and related surplus.
2. Includes, but is not limited
to, net unrealized holding gains (losses) on available-for-sale securities, accumulated net gains (losses) on cash flow hedges, cumulative foreign currency translation adjustments, and accumulated defined benefit pension and other postretirement
plan adjustments.
3. Includes treasury stock and unearned Employee Stock Ownership Plan shares.
03/2015
Bank of New York Mellon (NYSE:BK)
Historical Stock Chart
From Mar 2024 to Apr 2024
Bank of New York Mellon (NYSE:BK)
Historical Stock Chart
From Apr 2023 to Apr 2024
