Exhibit
10(p)
CITY
HOLDING COMPANY
as
Issuer
INDENTURE
Dated
as of March 27, 2008
WELLS
FARGO BANK, NATIONAL ASSOCIATION
As
Trustee
JUNIOR
SUBORDINATED DEBT SECURITIES
Due
June 15, 2038
ARTICLE
I
DEFINITIONS
|
SECTION
1.01.
|
Definitions
|
1
|
ARTICLE
II
DEBT
SECURITIES
|
SECTION
2.01.
|
Authentication
and Dating
|
8
|
|
SECTION
2.02.
|
Form
of Trustee's Certificate of Authentication
|
8
|
|
SECTION
2.03.
|
Form
and Denomination of Debt Securities
|
9
|
|
SECTION
2.04.
|
Execution
of Debt Securities
|
9
|
|
SECTION
2.05.
|
Exchange
and Registration of Transfer of Debt Securities
|
9
|
|
SECTION
2.06.
|
Mutilated,
Destroyed, Lost or Stolen Debt Securities
|
12
|
|
SECTION
2.07.
|
Temporary
Debt Securities
|
13
|
|
SECTION
2.08.
|
Payment
of Interest
|
14
|
|
SECTION
2.09.
|
Cancellation
of Debt Securities Paid, etc
|
15
|
|
SECTION
2.10.
|
Computation
of Interest
|
15
|
|
SECTION
2.11.
|
Extension
of Interest Payment Period
|
17
|
|
SECTION
2.12.
|
CUSIP
Numbers
|
18
|
|
SECTION
2.13.
|
Global
Debentures
|
18
|
|
SECTION
2.14.
|
Income
Tax Certification
|
20
|
ARTICLE
III
PARTICULAR
COVENANTS OF THE COMPANY
|
SECTION
3.01.
|
Payment
of Principal, Premium and Interest; Agreed Treatment of the
Debt Securities
|
20
|
|
SECTION
3.02.
|
Offices
for Notices and Payments, etc
|
21
|
|
SECTION
3.03.
|
Appointments
to Fill Vacancies in Trustee's Office
|
21
|
|
SECTION
3.04.
|
Provision
as to Paying Agent
|
22
|
|
SECTION
3.05.
|
Certificate
to Trustee
|
23
|
|
SECTION
3.06.
|
Additional
Interest
|
23
|
|
SECTION
3.07.
|
Compliance
with Consolidation Provisions
|
23
|
|
SECTION
3.08.
|
Limitation
on Dividends
|
23
|
|
SECTION
3.09.
|
Covenants
as to the Trust
|
24
|
TABLE OF CONTENTS
(CONTINUED)
Page
ARTICLE
IV
LISTS
AND REPORTS BY THE COMPANY AND THE TRUSTEE
|
SECTION
4.01.
|
Securityholders'
Lists
|
25
|
|
SECTION
4.02.
|
Preservation
and Disclosure of Lists
|
25
|
|
SECTION
4.03.
|
Financial
and Other Information
|
26
|
ARTICLE
V
REMEDIES
OF THE TRUSTEE AND SECURITYHOLDERS UPON AN EVENT OF
DEFAULT
|
SECTION
5.01.
|
Events
of Default
|
27
|
|
SECTION
5.02.
|
Payment
of Debt Securities on Default; Suit Therefor
|
29
|
|
SECTION
5.03.
|
Application
of Moneys Collected by Trustee
|
30
|
|
SECTION
5.04.
|
Proceedings
by Securityholders
|
31
|
|
SECTION
5.05.
|
Proceedings
by Trustee
|
31
|
|
SECTION
5.06.
|
Remedies
Cumulative and Continuing
|
32
|
|
SECTION
5.07.
|
Direction
of Proceedings and Waiver of Defaults by Majority of
Securityholders
|
32
|
|
SECTION
5.08.
|
Notice
of Defaults
|
33
|
|
SECTION
5.09.
|
Undertaking
to Pay Costs
|
33
|
ARTICLE
VI
CONCERNING
THE TRUSTEE
|
SECTION
6.01.
|
Duties
and Responsibilities of Trustee
|
34
|
|
SECTION
6.02.
|
Reliance
on Documents, Opinions, etc
|
35
|
|
SECTION
6.03.
|
No
Responsibility for Recitals, etc
|
36
|
|
SECTION
6.04.
|
Trustee,
Authenticating Agent, Paying Agents, Transfer Agents or
Registrar May Own Debt Securities
|
37
|
|
SECTION
6.05.
|
Moneys
to be Held in Trust
|
37
|
|
SECTION
6.06.
|
Compensation
and Expenses of Trustee
|
37
|
|
SECTION
6.07.
|
Officers'
Certificate as Evidence
|
38
|
|
SECTION
6.08.
|
Eligibility
of Trustee
|
38
|
|
SECTION
6.09.
|
Resignation
or Removal of Trustee, Calculation Agent, Paying Agent or Debt
Security Registrar
|
39
|
|
SECTION
6.10.
|
Acceptance
by Successor
|
40
|
|
SECTION
6.11.
|
Succession
by Merger, etc
|
41
|
|
SECTION
6.12.
|
Authenticating
Agents
|
41
|
TABLE OF CONTENTS
(CONTINUED)
Page
ARTICLE
VII
CONCERNING
THE SECURITYHOLDERS
|
SECTION
7.01.
|
Action
by Securityholders
|
43
|
|
SECTION
7.02.
|
Proof
of Execution by Securityholders
|
43
|
|
SECTION
7.03.
|
Who
Are Deemed Absolute Owners
|
44
|
|
SECTION
7.04.
|
Debt
Securities Owned by Company Deemed Not
Outstanding
|
44
|
|
SECTION
7.05.
|
Revocation
of Consents; Future Securityholders Bound
|
44
|
ARTICLE
VIII
SECURITYHOLDERS'
MEETINGS
|
SECTION
8.01.
|
Purposes
of Meetings
|
45
|
|
SECTION
8.02.
|
Call
of Meetings by Trustee
|
45
|
|
SECTION
8.03.
|
Call
of Meetings by Company or Securityholders
|
45
|
|
SECTION
8.04.
|
Qualifications
for Voting
|
46
|
|
SECTION
8.05.
|
Regulations
|
46
|
|
SECTION
8.06.
|
Voting
|
46
|
|
SECTION
8.07.
|
Quorum;
Actions
|
47
|
|
SECTION
8.08.
|
Written
Consent Without a Meeting
|
48
|
ARTICLE
IX
SUPPLEMENTAL
INDENTURES
|
SECTION
9.01.
|
Supplemental
Indentures without Consent of Securityholders
|
48
|
|
SECTION
9.02.
|
Supplemental
Indentures with Consent of Securityholders
|
49
|
|
SECTION
9.03.
|
Effect
of Supplemental Indentures
|
50
|
|
SECTION
9.04.
|
Notation
on Debt Securities
|
51
|
|
SECTION
9.05.
|
Evidence
of Compliance of Supplemental Indenture to be furnished to
Trustee
|
51
|
ARTICLE
X
REDEMPTION
OF SECURITIES
|
SECTION
10.01.
|
Optional
Redemption
|
51
|
|
SECTION
10.02.
|
Special
Event Redemption
|
51
|
|
SECTION
10.03.
|
Notice
of Redemption; Selection of Debt Securities
|
52
|
|
SECTION
10.04.
|
Payment
of Debt Securities Called for Redemption
|
52
|
TABLE OF CONTENTS
(CONTINUED)
Page
ARTICLE
XI
CONSOLIDATION,
MERGER, SALE, CONVEYANCE AND LEASE
|
SECTION
11.01.
|
Company
May Consolidate, etc., on Certain Terms
|
53
|
|
SECTION
11.02.
|
Successor
Entity to be Substituted
|
54
|
|
SECTION
11.03.
|
Opinion
of Counsel to be Given to Trustee
|
54
|
ARTICLE
XII
SATISFACTION
AND DISCHARGE OF INDENTURE
|
SECTION
12.01.
|
Discharge
of Indenture
|
55
|
|
SECTION
12.02.
|
Deposited
Moneys to be Held in Trust by Trustee
|
55
|
|
SECTION
12.03.
|
Paying
Agent to Repay Moneys Held
|
56
|
|
SECTION
12.04.
|
Return
of Unclaimed Moneys
|
56
|
ARTICLE
XIII
IMMUNITY
OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS
|
SECTION
13.01.
|
Indenture
and Debt Securities Solely Corporate Obligations
|
56
|
ARTICLE
XIV
MISCELLANEOUS
PROVISIONS
|
SECTION
14.01.
|
Successors
|
56
|
|
SECTION
14.02.
|
Official
Acts by Successor Entity
|
57
|
|
SECTION
14.03.
|
Surrender
of Company Powers
|
57
|
|
SECTION
14.04.
|
Addresses
for Notices, etc
|
57
|
|
SECTION
14.05.
|
Governing
Law
|
57
|
|
SECTION
14.06.
|
Evidence
of Compliance with Conditions Precedent
|
57
|
|
SECTION
14.07.
|
Non-Business
Days
|
58
|
|
SECTION
14.08.
|
Table
of Contents, Headings, etc
|
58
|
|
SECTION
14.09.
|
Execution
in Counterparts
|
58
|
|
SECTION
14.10.
|
Severability
|
58
|
|
SECTION
14.11.
|
Assignment
|
59
|
|
SECTION
14.12.
|
Acknowledgment
of Rights
|
59
|
TABLE OF CONTENTS
(CONTINUED)
Page
ARTICLE
XV
SUBORDINATION
OF DEBT SECURITIES
|
SECTION
15.01.
|
Agreement
to Subordinate
|
59
|
|
SECTION
15.02.
|
Default
on Senior Indebtedness
|
60
|
|
SECTION
15.03.
|
Liquidation;
Dissolution; Bankruptcy
|
60
|
|
SECTION
15.04.
|
Subrogation
|
61
|
|
SECTION
15.05.
|
Trustee
to Effectuate Subordination
|
62
|
|
SECTION
15.06.
|
Notice
by the Company
|
62
|
|
SECTION
15.07.
|
Rights
of the Trustee, Holders of Senior Indebtedness
|
63
|
|
SECTION
15.08.
|
Subordination
May Not Be Impaired
|
64
|
EXHIBITS
|
EXHIBIT
A
|
FORM
OF DEBT SECURITY
|
THIS
INDENTURE, dated as of March 27, 2008, between City Holding
Company, a bank holding company incorporated in West Virginia
(hereinafter sometimes called the "Company"), and Wells Fargo
Bank, National Association, a national banking association, as
trustee (hereinafter sometimes called the
"Trustee").
W
I T N E S S E T H:
WHEREAS,
for its lawful corporate purposes, the Company has duly
authorized the issuance of its Junior Subordinated Debt
Securities due June 15, 2038 (the "Debt Securities") under
this Indenture and to provide, among other things, for the
execution and authentication, delivery and administration
thereof, the Company has duly authorized the execution of this
Indenture.
NOW,
THEREFORE, in consideration of the premises, and the purchase
of the Debt Securities by the holders thereof, the Company
covenants and agrees with the Trustee for the equal and
proportionate benefit of the respective holders from time to
time of the Debt Securities as follows:
ARTICLE
I
DEFINITIONS
SECTION
1.01. Definitions
.
The
terms defined in this Section 1.01 (except as herein otherwise
expressly provided or unless the context otherwise requires)
for all purposes of this Indenture and of any indenture
supplemental hereto shall have the respective meanings
specified in this Section 1.01. All accounting terms used
herein and not expressly defined shall have the meanings
assigned to such terms in accordance with generally accepted
accounting principles and the term "generally accepted
accounting principles" means such accounting principles as are
generally accepted in the United States at the time of any
computation. 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.
"Additional
Interest" shall have the meaning set forth in Section
3.06.
"Additional
Provisions" shall have the meaning set forth in Section
15.01.
"Applicable
Depository Procedures" means, with respect to any transfer or
transaction involving a Global Debenture or beneficial
interest therein, the rules and procedures of the Depositary
for such Global Debenture, in each case to the extent
applicable to such transaction and as in effect from time to
time.
"Authenticating
Agent" means any agent or agents of the Trustee which at the
time shall be appointed and acting pursuant to Section
6.12.
"Bankruptcy
Law" means Title 11, U.S. Code, or any similar federal or
state law for the relief of debtors.
"Board
of Directors" means the board of directors or the executive
committee or any other duly authorized designated officers of
the Company.
"Board
Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have
been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification and
delivered to the Trustee.
"Business
Day" means any day other than a Saturday, Sunday or any other
day on which banking institutions in Wilmington, Delaware or
New York City are permitted or required by any applicable law
or executive order to close.
"Calculation
Agent" means the Person identified as "Trustee" in the first
paragraph hereof with respect to the Debt Securities and the
Institutional Trustee with respect to the Trust
Securities.
"Capital
Securities" means undivided beneficial interests in the assets
of the Trust which are designated as "Capital Securities" and
rank pari passu with Common Securities issued by the Trust;
provided, however, that if an Event of Default has occurred
and is continuing, the rights of holders of such Common
Securities to payment in respect of distributions and payments
upon liquidation, redemption and otherwise are subordinated to
the rights of holders of such Capital
Securities. The Capital Securities sold by the
Trust to the initial purchaser pursuant to Purchase Agreement
shall be issued in book entry form, registered in the name of
Cede & Co., as nominee on behalf of the Depository Trust
Company, without coupons, and held by the Institutional
Trustee as custodian for the Depository Trust
Company.
"Capital
Securities Guarantee" means the guarantee agreement that the
Company will enter into with Wells Fargo Bank, National
Association or other Persons that operates directly or
indirectly for the benefit of holders of Capital Securities of
the Trust.
"Capital
Treatment Event" means the receipt by the Company and the
Trust of an Opinion of Counsel experienced in such matters to
the effect that, as a result of any amendment to, or change
in, the laws, rules or regulations of the United States or any
political subdivision thereof or therein, or as the result of
any official or administrative pronouncement or action or
decision interpreting or applying such laws, rules or
regulations, which amendment or change is effective or which
pronouncement, action or decision is announced on or after the
date of original issuance of the Debt Securities, there is
more than an insubstantial risk that, within 90 days of the
receipt of such opinion, the aggregate Liquidation Amount of
the Capital Securities will not be eligible to be treated by
the Company as "Tier 1 Capital" (or the then equivalent
thereof) for purposes of the capital adequacy guidelines of
the Federal Reserve or OTS, as applicable (or any successor
regulatory authority with jurisdiction over bank, savings
& loan or financial holding companies), as then in effect
and applicable to the Company; provided
, however ,
that the inability of the Company to treat all or any portion
of the Liquidation Amount of the Capital Securities as
Tier 1 Capital shall not constitute the basis for a
Capital Treatment Event, if such inability results from the
Company having cumulative preferred stock, minority interests
in consolidated subsidiaries, or any other class of security
or interest which the Federal
Reserve
or OTS, as applicable, may now or hereafter accord Tier 1
Capital treatment in excess of the amount which may now or
hereafter qualify for treatment as Tier 1 Capital under
applicable capital adequacy guidelines; provided
further ,
however ,
that the distribution of the Debt Securities in connection
with the liquidation of the Trust by the Company shall not in
and of itself constitute a Capital Treatment Event unless such
liquidation shall have occurred in connection with a Tax Event
or an Investment Company Event.
"Certificate"
means a certificate signed by any one of the principal
executive officer, the principal financial officer or the
principal accounting officer of the Company.
"Common
Securities" means undivided beneficial interests in the assets
of the Trust which are designated as "Common Securities" and
rank pari passu with Capital Securities issued by the Trust;
provided, however, that if an Event of Default has occurred
and is continuing, the rights of holders of such Common
Securities to payment in respect of distributions and payments
upon liquidation, redemption and otherwise are subordinated to
the rights of holders of such Capital Securities.
"Company"
means City Holding Company, a bank holding company
incorporated in West Virginia, and, subject to the provisions
of Article XI, shall include its successors and
assigns.
"Debt
Security" or "Debt Securities" has the meaning stated in the
first recital of this Indenture.
"Debt
Security Register" has the meaning specified in Section
2.05.
"Debt
Security Registrar" has the meaning specified in Section
2.05.
"Declaration"
means the Amended and Restated Declaration of Trust of the
Trust dated as of March 27, 2008, as amended or supplemented
from time to time.
"Default"
means any event, act or condition that with notice or lapse of
time, or both, would constitute an Event of
Default.
"Defaulted
Interest" has the meaning set forth in Section
2.08.
"Deferred
Interest" has the meaning set forth in Section
2.11.
"Depositary"
means an organization registered as a clearing agency under
the Securities Exchange Act of 1934 that is designated as
Depositary by the Company or any successor
thereto. DTC will be the initial
Depositary.
"Depositary
Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time the
Depositary effects book-entry transfers and pledges of
securities deposited with the Depositary.
"DTC"
means The Depository Trust Company, a New York
corporation.
"Event
of Default" means any event specified in Section 5.01, which
has continued for the period of time, if any, and after the
giving of the notice, if any, therein designated.
"Exchange
Act” means the Securities Exchange Act of 1934, as
amended from time to time, or any successor
legislation.
"Extension
Period" has the meaning set forth in Section
2.11.
"Federal
Reserve" means the Board of Governors of the Federal Reserve
System.
"Global
Debenture" means a security that evidences all or part of the
Debt Securities, the ownership and transfers of which shall be
made through book entries by a Depositary.
"Indenture"
means this instrument as originally executed or, if amended or
supplemented as herein provided, as so amended or
supplemented, or both.
"Initial
Purchaser" means the initial purchaser of the Capital
Securities.
"Institutional
Trustee" has the meaning set forth in the
Declaration.
"Interest
Payment Date" means March 15, June 15, September 15 and
December 15 of each year, commencing on June 15, 2008, during
the term of this Indenture.
"Interest
Payment Period" means the period from and including an
Interest Payment Date, or in the case of the first Interest
Payment Period, the original date of issuance of the Debt
Securities, to, but excluding, the next succeeding Interest
Payment Date or, in the case of the last Interest Payment
Period, the Redemption Date, Special Redemption Date or
Maturity Date, as the case may be.
"Interest
Rate" means, with respect to any Interest Payment Period, a
per annum rate of interest, reset quarterly, equal to LIBOR,
as determined on the LIBOR Determination Date immediately
preceding each Interest Payment Date, plus 3.5%; provided,
however, that the Interest Rate for any Interest Payment
Period may not exceed the highest rate permitted by New York
law, as the same may be modified by United States law of
general applicability.
"Investment
Company Event" means the receipt by the Company and the Trust
of an Opinion of Counsel experienced in such matters to the
effect that, as a result of a change in law or regulation or
written change in interpretation or application of law or
regulation by any legislative body, court, governmental agency
or regulatory authority, there is more than an insubstantial
risk that the Trust is or, within 90 days of the date of such
opinion will be, considered an "investment company" that is
required to be registered under the Investment Company Act of
1940, as amended, which change or prospective change becomes
effective or would become effective, as the case may be, on or
after the date of the original issuance of the Debt
Securities.
"LIBOR"
means the London Interbank Offered Rate for U.S. Dollar
deposits in Europe as determined by the Calculation Agent
according to Section 2.10(b).
"LIBOR
Banking Day" has the meaning set forth in Section
2.10(b)(1).
"LIBOR
Business Day" has the meaning set forth in Section
2.10(b)(1).
"LIBOR
Determination Date" has the meaning set forth in Section
2.10(b).
"Liquidation
Amount" means the liquidation amount of $1,000 per Trust
Security.
"Maturity
Date" means June 15, 2038.
"Notice"
has the meaning set forth in Section 2.11.
"Officers'
Certificate" means a certificate signed by the Chairman of the
Board, the Vice Chairman, the President or any Vice President,
and by the Chief Financial Officer, the Treasurer, an
Assistant Treasurer, the Comptroller, an Assistant
Comptroller, the Secretary or an Assistant Secretary of the
Company, and delivered to the Trustee. Each such certificate
shall include the statements provided for in Section 14.06 if
and to the extent required by the provisions of such
Section.
"Opinion
of Counsel" means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Company,
or may be other counsel reasonably satisfactory to the
Trustee. Each such opinion shall include the statements
provided for in Section 14.06 if and to the extent required by
the provisions of such Section.
"OTS"
means the Office of Thrift Supervision and any successor
federal agency that is primarily responsible for regulating
the activities of savings and loan holding
companies.
"Outstanding"
means, when used with reference to Debt Securities, subject to
the provisions of Section 7.04, as of any particular time, all
Debt Securities authenticated and delivered by the Trustee or
the Authenticating Agent under this Indenture,
except
(a) Debt
Securities theretofore canceled by the Trustee or the
Authenticating Agent or delivered to the Trustee for
cancellation;
(b) Debt
Securities, or portions thereof, for the payment or redemption
of which moneys in the necessary amount shall have been
deposited in trust with the Trustee or with any Paying Agent
(other than the Company) or shall have been set aside and
segregated in trust by the Company (if the Company shall act
as its own Paying Agent); provided
, that, if such Debt Securities, or portions thereof, are to
be redeemed prior to maturity thereof, notice of such
redemption shall have been given as provided in Articles X and
XIV or provision satisfactory to the Trustee shall have been
made for giving such notice; and
(c) Debt
Securities paid pursuant to Section 2.06 or in lieu of or in
substitution for which other Debt Securities shall have been
authenticated and delivered pursuant
to
the terms of Section 2.06 unless proof satisfactory to the
Company and the Trustee is presented that any such Debt
Securities are held by bona fide holders in due
course.
"Paying
Agent" has the meaning set forth in Section
3.04(e).
"Person"
means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency
or political subdivision thereof.
"Predecessor
Security" of any particular Debt Security means every previous
Debt Security evidencing all or a portion of the same debt as
that evidenced by such particular Debt Security; and, for the
purposes of this definition, any Debt Security authenticated
and delivered under Section 2.06 in lieu of a lost, destroyed
or stolen Debt Security shall be deemed to evidence the same
debt as the lost, destroyed or stolen Debt
Security.
"Principal
Office of the Trustee" means the office of the Trustee, at
which at any particular time its corporate trust business
shall be principally administered, which at all times shall be
located within the United States and at the time of the
execution of this Indenture shall be 919 North Market Street,
Suite 1600, Wilmington, Delaware 19801.
"Redemption
Date" has the meaning set forth in Section 10.01.
"Redemption
Price" means 100% of the principal amount of the Debt
Securities being redeemed plus accrued and unpaid interest on
such Debt Securities to the Redemption Date or, in the case of
a redemption due to the occurrence of a Special Event to the
Special Redemption Date if such Special Redemption Date is on
or after June 15, 2013.
"Responsible
Officer" means, with respect to the Trustee, any officer
within the Principal Office of the Trustee with direct
responsibility for the administration of the Indenture,
including any vice-president, any assistant vice-president,
any secretary, any assistant secretary, the treasurer, any
assistant treasurer, any trust officer or other officer of the
Principal Office of the Trustee customarily performing
functions similar to those performed by any of the above
designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom
such matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
"Securities
Act" means the Securities Act of 1933, as amended from time to
time, or any successor legislation.
"Securityholder,"
"holder of Debt Securities" or other similar terms, means any
Person in whose name at the time a particular Debt Security is
registered on the Debt Security Register.
"Senior
Indebtedness" means, with respect to the Company, (i) the
principal, premium, if any, and interest in respect of (A)
indebtedness of the Company for money borrowed and (B)
indebtedness evidenced by securities, debentures, notes, bonds
or other similar instruments issued by the Company; (ii) all
capital lease obligations of the Company; (iii) all
obligations of the Company issued or assumed as the deferred
purchase price of property, all
conditional
sale obligations of the Company and all obligations of the
Company under any title retention agreement (but excluding
trade accounts payable arising in the ordinary course of
business); (iv) all obligations of the Company for the
reimbursement of any letter of credit, any banker's
acceptance, any security purchase facility, any repurchase
agreement or similar arrangement, any interest rate swap, any
other hedging arrangement, any obligation under options or any
similar credit or other transaction; (v) all obligations of
the type referred to in clauses (i) through (iv) above of
other Persons for the payment of which the Company is
responsible or liable as obligor, guarantor or otherwise; and
(vi) all obligations of the type referred to in clauses (i)
through (v) above of other Persons secured by any lien on any
property or asset of the Company (whether or not such
obligation is assumed by the Company), whether incurred on or
prior to the date of this Indenture or thereafter incurred,
unless (1) with the prior approval of the Federal Reserve or
OTS, as applicable, if not otherwise generally approved, in
the instrument creating or evidencing the same or pursuant to
which the same is outstanding, it is provided that such
obligations are not superior or are pari passu in
right of payment to the Debt Securities; or (2) the Federal
Reserve or OTS, as applicable, shall hereafter classify or
otherwise recognize any such obligation as pari passu or
subordinate to the Debt Securities.
"Special
Event" means any of a Tax Event, an Investment Company Event
or a Capital Treatment Event.
"Special
Redemption Date" has the meaning set forth in Section
10.02.
"Special
Redemption Price" means, with respect to the redemption of any
Debt Security following a Special Event, an amount in cash
equal to 103.525% of the principal amount of Debt Securities
to be redeemed prior to June 15, 2009 and thereafter equal to
the percentage of the principal amount of the Debt Securities
that is specified below for the Special Redemption Date plus,
in each case, unpaid interest accrued thereon to the Special
Redemption Date:
|
Special Redemption During the
12-Month Period Beginning June 15
|
Percentage of Principal Amount
|
| |
|
|
2009
|
102.820%
|
|
2010
|
102.115%
|
|
2011
|
101.410%
|
|
2012
|
100.705%
|
|
2013
and thereafter
|
100.000%
|
"Subsidiary"
means, with respect to any Person, (i) any corporation, at
least a majority of the outstanding voting stock of which is
owned, directly or indirectly, by such Person or by one or
more of its Subsidiaries, or by such Person and one or more of
its Subsidiaries, (ii) any general partnership, joint venture
or similar entity, at least a majority of the outstanding
partnership or similar interests of which shall at the time be
owned by such Person, or by one or more of its Subsidiaries,
or by such Person and one or more of its Subsidiaries, and
(iii) any limited partnership of which such Person or any of
its Subsidiaries is a general partner. For the purposes of
this definition, "voting stock" means shares, interests,
participations or other equivalents in the equity interest
(however designated) in such Person having ordinary
voting
power
for the election of a majority of the directors (or the
equivalent) of such Person, other than shares, interests,
participations or other equivalents having such power only by
reason of the occurrence of a contingency.
"Tax
Event" means the receipt by the Company and the Trust of an
Opinion of Counsel experienced in such matters to the effect
that, as a result of any amendment to or change (including any
announced prospective change) in the laws or any regulations
thereunder of the United States or any political subdivision
or taxing authority thereof or therein, or as a result of any
official administrative pronouncement (including any private
letter ruling, technical advice memorandum, regulatory
procedure, notice or announcement (an "Administrative
Action")) or judicial decision interpreting or applying such
laws or regulations, regardless of whether such Administrative
Action or judicial decision is issued to or in connection with
a proceeding involving the Company or the Trust and whether or
not subject to review or appeal, which amendment,
clarification, change, Administrative Action or decision is
enacted, promulgated or announced, in each case on or after
the date of original issuance of the Debt Securities, there is
more than an insubstantial risk that: (i) the Trust is, or
will be within 90 days of the date of such opinion, subject to
United States federal income tax with respect to income
received or accrued on the Debt Securities; (ii) interest
payable by the Company on the Debt Securities is not, or
within 90 days of the date of such opinion, will not be,
deductible by the Company, in whole or in part, for United
States federal income tax purposes; or (iii) the Trust is, or
will be within 90 days of the date of such opinion, subject to
or otherwise required to pay, or required to withhold from
distributions to holders of Trust Securities, more than a de
minimis amount of other taxes (including withholding taxes),
duties, assessments or other governmental
charges.
"Trust"
means City Holding Capital Trust III, the Delaware statutory
trust, or any other similar trust created for the purpose of
issuing Capital Securities in connection with the issuance of
Debt Securities under this Indenture, of which the Company is
the sponsor.
"Trust
Indenture Act" means the Trust Indenture Act of 1939, as
amended from time-to-time, or any successor
legislation.
"Trust
Securities" means Common Securities and Capital Securities of
City Holding Capital Trust III.
"Trustee"
means the Person identified as "Trustee" in the first
paragraph hereof, and, subject to the provisions of Article VI
hereof, shall also include its successors and assigns as
Trustee hereunder.
"United
States" means the United States of America and the District of
Columbia.
"U.S.
Person" has the meaning given to United States Person as set
forth in Section 7701(a)(30) of the Internal Revenue Code of
1986, as amended.
ARTICLE
II
DEBT
SECURITIES
SECTION
2.01. Authentication
and Dating .
Upon
the execution and delivery of this Indenture, or from time to
time thereafter, Debt Securities in an aggregate principal
amount not in excess of $16,495,000 may be executed and
delivered by the Company to the Trustee for authentication,
and the Trustee shall thereupon authenticate and make
available for delivery said Debt Securities to or upon the
written order of the Company, signed by its Chairman of the
Board of Directors, Vice Chairman, President or Chief
Financial Officer or one of its Vice Presidents, without any
further action by the Company hereunder. In authenticating
such Debt Securities, and accepting the additional
responsibilities under this Indenture in relation to such Debt
Securities, the Trustee shall be entitled to receive, and
(subject to Section 6.01) shall be fully protected in relying
upon a copy of any Board Resolution or Board Resolutions
relating thereto and, if applicable, an appropriate record of
any action taken pursuant to such resolution, in each case
certified by the Secretary or an Assistant Secretary or other
officers with appropriate delegated authority of the Company
as the case may be.
The
Trustee shall have the right to decline to authenticate and
deliver any Debt Securities under this Section if the Trustee,
being advised by counsel, determines that such action may not
lawfully be taken or if a Responsible Officer of the Trustee
in good faith shall determine that such action would expose
the Trustee to personal liability to existing
Securityholders. The Trustee shall also be entitled
to receive an opinion of counsel to the effect that (1) all
conditions precedent to the execution, delivery and
authentication of the Debt Securities have been complied with;
(2) the Debt Securities are not required to be registered
under the Securities Act; and (3) the Indenture is not
required to be qualified under the Trust Indenture
Act.
The
definitive Debt Securities shall be typed, printed,
lithographed or engraved on steel engraved borders or may be
produced in any other manner, all as determined by the
officers executing such Debt Securities, as evidenced by their
execution of such Debt Securities.
SECTION
2.02. Form of
Trustee's Certificate of Authentication .
The
Trustee's certificate of authentication on all Debt Securities
shall be in substantially the following form:
This
is one of the Debt Securities referred to in the
within-mentioned Indenture.
WELLS
FARGO BANK, NATIONAL ASSOCIATION, not in its individual
capacity but solely as trustee
SECTION
2.03. Form and
Denomination of Debt Securities .
The
Debt Securities shall be substantially in the form of Exhibit
A hereto. The Debt Securities shall be in registered,
certificated form without coupons and in minimum denominations
of $100,000 and any multiple of $1,000 in excess thereof. The
Debt Securities shall be numbered, lettered, or otherwise
distinguished in such manner or in accordance with such plans
as the officers executing the same may determine with the
approval of the Trustee as evidenced by the execution and
authentication thereof.
SECTION
2.04. Execution of
Debt Securities .
The
Debt Securities shall be signed in the name and on behalf of
the Company by the manual or facsimile signature of its
Chairman of the Board of Directors, Vice Chairman, President
or Chief Financial Officer or one of its Executive Vice
Presidents, Senior Vice Presidents or Vice Presidents, by
facsimile or otherwise, and which need not be attested. Only
such Debt Securities as shall bear thereon a certificate of
authentication substantially in the form herein before
recited, executed by the Trustee or the Authenticating Agent
by the manual signature of an authorized officer, shall be
entitled to the benefits of this Indenture or be valid or
obligatory for any purpose. Such certificate by the Trustee or
the Authenticating Agent upon any Debt Security executed by
the Company shall be conclusive evidence that the Debt
Security so authenticated has been duly authenticated and
delivered hereunder and that the Securityholder is entitled to
the benefits of this Indenture.
In
case any officer of the Company who shall have signed any of
the Debt Securities shall cease to be such officer before the
Debt Securities so signed shall have been authenticated and
delivered by the Trustee or the Authenticating Agent, or
disposed of by the Company, such Debt Securities nevertheless
may be authenticated and delivered or disposed of as though
the Person who signed such Debt Securities had not ceased to
be such officer of the Company; and any Debt Security may be
signed on behalf of the Company by such Persons as, at the
actual date of the execution of such Debt Security, shall be
the proper officers of the Company, although at the date of
the execution of this Indenture any such person was not such
an officer.
Every
Debt Security shall be dated the date of its
authentication.
SECTION
2.05. Exchange and
Registration of Transfer of Debt Securities
.
The
Trustee, in its capacity as "Debt Security Registrar", shall
cause to be kept, at the office or agency maintained for the
purpose of registration of transfer and for exchange as
provided in Section 3.02, a register (the "Debt Security
Register") for the Debt Securities issued hereunder in which,
subject to such reasonable regulations as it may prescribe,
the Debt Security Registrar shall provide for the registration
and transfer of all Debt Securities as provided in this
Article II. Such register shall be in written form or in any
other form capable of being converted into written form within
a reasonable time.
Debt
Securities to be exchanged may be surrendered at the Principal
Office of the Trustee or at any office or agency to be
maintained by the Company for such purpose as provided in
Section 3.02, and the Company shall execute, the Company or
the Trustee shall
register
and the Trustee or the Authenticating Agent shall authenticate
and make available for delivery in exchange therefor the Debt
Security or Debt Securities which the Securityholder making
the exchange shall be entitled to receive. Upon due
presentment for registration of transfer of any Debt Security
at the Principal Office of the Trustee or at any office or
agency of the Company maintained for such purpose as provided
in Section 3.02, the Company shall execute, the Company or the
Trustee shall register and the Trustee or the Authenticating
Agent shall authenticate and make available for delivery in
the name of the transferee or transferees a new Debt Security
for a like aggregate principal amount. Registration or
registration of transfer of any Debt Security by the Trustee
or by any agent of the Company appointed pursuant to Section
3.02, and delivery of such Debt Security, shall be deemed to
complete the registration or registration of transfer of such
Debt Security.
All
Debt Securities presented for registration of transfer or for
exchange or payment shall (if so required by the Company or
the Trustee or the Authenticating Agent) be duly endorsed by,
or be accompanied by, a written instrument or instruments of
transfer in form satisfactory to the Company and either the
Trustee or the Authenticating Agent duly executed by, the
Securityholder or such Securityholder's attorney duly
authorized in writing.
Neither
the Trustee nor the Debt Security Registrar shall be
responsible for ascertaining whether any transfer hereunder
complies with the registration provisions of or
any exemptions from the Securities Act, applicable
state securities laws or the applicable laws of any other
jurisdiction, ERISA, the Code or the Investment Company
Act.
No
service charge shall be made for any exchange or registration
of transfer of Debt Securities, but the Company or the Trustee
may require payment of a sum sufficient to cover any tax, fee
or other governmental charge that may be imposed in connection
therewith.
The
Company or the Trustee shall not be required to exchange or
register a transfer of any Debt Security for a period of 15
days immediately preceding the date of selection of Debt
Securities for redemption.
Notwithstanding
the foregoing, Debt Securities may not be transferred except
in compliance with the restricted securities legend set forth
below, unless otherwise determined by the Company in
accordance with applicable law, which legend shall be placed
on each Debt Security:
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY ONLY
(A) TO THE COMPANY, (B) PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON THE HOLDER
REASONABLY
BELIEVES
IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) TO A
“NON U.S. PERSON” IN AN “OFFSHORE
TRANSACTION” PURSUANT TO REGULATION S UNDER THE
SECURITIES ACT, (D) PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT TO AN
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a)
(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT
IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE
ACCOUNT OF AN "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO
THE COMPANY'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO IT IN ACCORDANCE WITH THE INDENTURE, A COPY OF
WHICH MAY BE OBTAINED FROM THE COMPANY. THE HOLDER OF THIS
SECURITY BY ITS ACCEPTANCE HEREOF AGREES THAT IT WILL COMPLY
WITH THE FOREGOING RESTRICTIONS.
THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES,
REPRESENTS AND WARRANTS THAT IT WILL NOT ENGAGE IN HEDGING
TRANSACTIONS INVOLVING THIS SECURITY UNLESS SUCH TRANSACTIONS
ARE IN COMPLIANCE WITH THE SECURITIES ACT OR AN APPLICABLE
EXEMPTION THEREFROM.
THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES,
REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT,
INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), (EACH
A "PLAN"), OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN
ASSETS" BY REASON OF ANY PLAN'S INVESTMENT IN THE ENTITY AND
NO PERSON INVESTING "PLAN ASSETS" OF ANY PLAN MAY ACQUIRE OR
HOLD THIS SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH
PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF
AVAILABLE UNDER U.S. DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14
OR ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF
THIS SECURITY IS NOT PROHIBITED BY SECTION 406 OF ERISA OR
SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE OR
HOLDING. ANY PURCHASER OR HOLDER OF THIS SECURITY OR ANY
INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS
PURCHASE AND HOLDING THEREOF THAT EITHER (i) IT IS NOT AN
EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF SECTION 3(3) OF
ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS
APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN
EMPLOYEE BENEFIT
PLAN
OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY
EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR
(ii) SUCH PURCHASE WILL NOT RESULT IN A PROHIBITED TRANSACTION
UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE FOR
WHICH THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE
EXEMPTION.
IN
CONNECTION WITH ANY TRANSFER, THE HOLDER OF THIS SECURITY WILL
DELIVER TO THE COMPANY AND THE TRUSTEE SUCH CERTIFICATES AND
OTHER INFORMATION AS MAY BE REQUIRED BY THE INDENTURE TO
CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.
THIS
SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS
HAVING A PRINCIPAL AMOUNT OF NOT LESS THAN $100,000 AND
MULTIPLES OF $1,000 IN EXCESS THEREOF. ANY ATTEMPTED TRANSFER
OF THIS SECURITY IN A BLOCK HAVING A PRINCIPAL AMOUNT OF LESS
THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL
EFFECT WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE
DEEMED NOT TO BE THE HOLDER OF THIS SECURITY FOR ANY PURPOSE,
INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON
THIS SECURITY, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED
TO HAVE NO INTEREST WHATSOEVER IN THIS SECURITY.
THIS
OBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY THE UNITED
STATES OR ANY AGENCY OR FUND OF THE UNITED STATES, INCLUDING
THE FEDERAL DEPOSIT INSURANCE CORPORATION (THE "FDIC"). THIS
OBLIGATION IS SUBORDINATED TO THE CLAIMS OF DEPOSITORS AND THE
CLAIMS OF GENERAL AND SECURED CREDITORS OF THE COMPANY, IS
INELIGIBLE AS COLLATERAL FOR A LOAN BY THE COMPANY OR ANY OF
ITS SUBSIDIARIES AND IS NOT SECURED.
SECTION
2.06. Mutilated,
Destroyed, Lost or Stolen Debt Securities
.
In
case any Debt Security shall become mutilated or be destroyed,
lost or stolen, the Company shall execute, and upon its
written request the Trustee shall authenticate and deliver, a
new Debt Security bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated
Debt Security, or in lieu of and in substitution for the Debt
Security so destroyed, lost or stolen. In every case the
applicant for a substituted Debt Security shall furnish to the
Company and the Trustee such security or indemnity as may be
required by them to save each of them harmless, and, in every
case of destruction, loss or theft, the applicant shall also
furnish to the Company and the Trustee evidence to their
satisfaction of the destruction, loss or theft of such Debt
Security and of the ownership thereof.
The
Trustee may authenticate any such substituted Debt Security
and deliver the same upon the written request or authorization
of any officer of the Company. Upon the issuance of any
substituted Debt Security, 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 connected therewith. In case any Debt Security which
has matured or is about to mature or has been called for
redemption in full shall become mutilated or be destroyed,
lost or stolen, the Company may, instead of issuing a
substitute Debt Security, pay or authorize the payment of the
same (without surrender thereof except in the case of a
mutilated Debt Security) if the applicant for such payment
shall furnish to the Company and the Trustee such security or
indemnity as may be required by them to save each of them
harmless and, in case of destruction, loss or theft, evidence
satisfactory to the Company and to the Trustee of the
destruction, loss or theft of such Security and of the
ownership thereof.
Every
substituted Debt Security issued pursuant to the provisions of
this Section 2.06 by virtue of the fact that any such Debt
Security is destroyed, lost or stolen shall constitute an
additional contractual obligation of the Company, whether or
not the destroyed, lost or stolen Debt Security shall be found
at any time, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other
Debt Securities duly issued hereunder. All Debt Securities
shall be held and owned upon the express condition that, to
the extent permitted by applicable law, the foregoing
provisions are exclusive with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Debt
Securities and shall preclude any and all other rights or
remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other
securities without their surrender.
SECTION
2.07. Temporary Debt
Securities .
Pending
the preparation of definitive Debt Securities, the Company may
execute and the Trustee shall authenticate and make available
for delivery temporary Debt Securities that are typed, printed
or lithographed. Temporary Debt Securities shall be issuable
in any authorized denomination, and substantially in the form
of the definitive Debt Securities but with such omissions,
insertions and variations as may be appropriate for temporary
Debt Securities, all as may be determined by the Company.
Every such temporary Debt Security shall be executed by the
Company and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with the
same effect, as the definitive Debt Securities. Without
unreasonable delay, the Company will execute and deliver to
the Trustee or the Authenticating Agent definitive Debt
Securities and thereupon any or all temporary Debt Securities
may be surrendered in exchange therefor, at the Principal
Office of the Trustee or at any office or agency maintained by
the Company for such purpose as provided in Section 3.02, and
the Trustee or the Authenticating Agent shall authenticate and
make available for delivery in exchange for such temporary
Debt Securities a like aggregate principal amount of such
definitive Debt Securities. Such exchange shall be made by the
Company at its own expense and without any charge therefor
except that in case of any such exchange involving a
registration of transfer the Company may require payment of a
sum sufficient to cover any tax, fee or other governmental
charge that may be imposed in relation thereto. Until so
exchanged, the temporary Debt Securities shall in all respects
be entitled to the same benefits under this Indenture as
definitive Debt Securities authenticated and delivered
hereunder.
SECTION
2.08. Payment of
Interest.
Each
Debt Security will bear interest at the then applicable
Interest Rate from and including each Interest Payment Date
or, in the case of the first Interest Payment Period, the
original date of issuance of such Debt Security to, but
excluding, the next succeeding Interest Payment Date or, in
the case of the last Interest Payment Period, the Redemption
Date, Special Redemption Date or Maturity Date, as applicable,
on the principal thereof, on any overdue principal and (to the
extent that payment of such interest is enforceable under
applicable law) on Deferred Interest and on any overdue
installment of interest (including Defaulted Interest),
payable (subject to the provisions of Article XV) on each
Interest Payment Date commencing on June 15,
2008. Interest and any Deferred Interest on any
Debt Security that is payable, and is punctually paid or duly
provided for by the Company, on any Interest Payment Date
shall be paid to the Person in whose name said Debt Security
(or one or more Predecessor Securities) is registered at the
close of business on the regular record date for such interest
installment, except that interest and any Deferred Interest
payable on the Maturity Date, the Redemption Date (to the
extent redeemed) or the Special Redemption Date, shall be paid
to the Person to whom principal is paid. In (i) case the
Maturity Date of any Debt Security or (ii) the event that any
Debt Security or portion thereof is called for redemption and
the redemption date is subsequent to a regular record date
with respect to any Interest Payment Date and either on or
prior to such Interest Payment Date, interest on such Debt
Security will be paid upon presentation and surrender of such
Debt Security.
Any
interest on any Debt Security, other than Deferred Interest,
that is payable, but is not punctually paid or duly provided
for by the Company, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be
payable to the registered Securityholder on the relevant
regular record date by virtue of having been such
Securityholder, and such Defaulted Interest shall be paid by
the Company to the Persons in whose names such Debt Securities
(or their respective Predecessor Securities) are registered at
the close of business on a special record date for the payment
of such Defaulted Interest, which shall be fixed in the
following manner: the Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be
paid on each such Debt Security and the date of the proposed
payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or
shall make arrangements reasonably satisfactory to the Trustee
for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit
of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a special
record date for the payment of such Defaulted Interest which
shall not be more than fifteen nor less than ten days prior to
the date of the proposed payment and not less than ten days
after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such
special record date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such
Defaulted Interest and the special record date therefor to be
mailed, first class postage prepaid, to each Securityholder at
his or her address as it appears in the Debt Security
Register, not less than ten days prior to such special record
date. Notice of the proposed payment of such Defaulted
Interest and the special record date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to
the Persons in whose names such Debt Securities (or their
respective Predecessor Securities) are
registered
on such special record date and thereafter the Company shall
have no further payment obligation in respect of the Defaulted
Interest.
Any
interest scheduled to become payable on an Interest Payment
Date occurring during an Extension Period shall not be
Defaulted Interest and shall be payable on such other date as
may be specified in the terms of such Debt
Securities.
The
term "regular record date" as used in this Section shall mean
the fifteenth day prior to the applicable Interest Payment
Date, whether or not such date is a Business Day.
Subject
to the foregoing provisions of this Section, each Debt
Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Debt
Security shall carry the rights to interest accrued and
unpaid, and to accrue, that were carried by such other Debt
Security.
SECTION
2.09. Cancellation of
Debt Securities Paid, etc.
All
Debt Securities surrendered for the purpose of payment,
redemption, exchange or registration of transfer, shall, if
surrendered to the Company or any Paying Agent, be surrendered
to the Trustee and promptly canceled by it, or, if surrendered
to the Trustee, shall be promptly canceled by it, and no Debt
Securities shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Indenture. The
Trustee shall dispose of all canceled Debt Securities in
accordance with its customary practices unless the Company
otherwise directs the Trustee in writing, in which case the
Trustee shall dispose of such Debt Securities as directed by
the Company. If the Company shall acquire any of the Debt
Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by
such Debt Securities unless and until the same are surrendered
to the Trustee for cancellation.
SECTION
2.10. Computation of
Interest .
(a) The
amount of interest payable for any Interest Payment Period
will be computed on the basis of a 360-day year and the actual
number of days elapsed in the relevant interest period;
provided
, however ,
that upon the occurrence of a Special Event Redemption
pursuant to Section 10.02 the amounts payable pursuant to this
Indenture shall be calculated as set forth in the definition
of Special Redemption Price.
(b) LIBOR,
for any Interest Payment Period, shall be determined by the
Calculation Agent in accordance with the following
provisions:
(1) On
the second LIBOR Business Day (provided, that on such day
commercial banks are open for business (including dealings in
foreign currency deposits) in London (a "LIBOR Banking Day"),
and otherwise the next preceding LIBOR Business Day that is
also a LIBOR Banking Day) prior to the March 15, June 15,
September 15 and December 15 commencement date of each such
Interest Payment Period (or, with respect to the first
Interest Payment Period, on March 25, 2008) (each such day, a
"LIBOR Determination Date" for such Interest Payment Period),
the Calculation Agent shall obtain the rate for three-month
U.S.
Dollar
deposits in Europe, which appears on Reuters Screen LIBOR 01
Page (as defined in the International Swaps and Derivatives
Association, Inc. 2000 Interest Rate and Currency Exchange
Definitions) or such other page as may replace such page, as
of 11:00 a.m. (London time) on such LIBOR Determination Date,
as reported by Bloomberg Financial Markets Commodities News or
any successor service (“Reuters Screen”), and the
rate so obtained shall be LIBOR for such Interest Payment
Period. "LIBOR Business Day" means any day that is
not a Saturday, Sunday or other day on which commercial
banking institutions in The City of New York or Wilmington,
Delaware are authorized or obligated by law or executive order
to be closed. If such rate is superseded on Reuters Screen by
a corrected rate before 12:00 noon (London time) on the same
LIBOR Determination Date, the corrected rate as so substituted
will be LIBOR for that Interest Payment Period.
(2) If,
on any LIBOR Determination Date, such rate does not appear on
Reuters Screen, the Calculation Agent shall determine the
arithmetic mean of the offered quotations of the Reference
Banks (as defined below) to leading banks in the London
Interbank market for three-month U.S. Dollar deposits in
Europe (in an amount determined by the Calculation Agent) by
reference to requests for quotations as of approximately 11:00
a.m. (London time) on the LIBOR Determination Date made by the
Calculation Agent to the Reference Banks. If, on any LIBOR
Determination Date, at least two of the Reference Banks
provide such quotations, LIBOR shall equal the arithmetic mean
of such quotations. If, on any LIBOR Determination Date, only
one or none of the Reference Banks provide such a quotation,
LIBOR shall be deemed to be the arithmetic mean of the offered
quotations that at least two leading banks in the City of New
York (as selected by the Calculation Agent) are quoting on the
relevant LIBOR Determination Date for three-month U.S. Dollar
deposits in Europe at approximately 11:00 a.m. (London time)
(in an amount determined by the Calculation Agent). As used
herein, "Reference Banks" means four major banks in the London
Interbank market selected by the Calculation
Agent.
(3) If
the Calculation Agent is required but is unable to determine a
rate in accordance with at least one of the procedures
provided above, LIBOR for the applicable Interest Payment
Period shall be LIBOR in effect for the immediately preceding
Interest Payment Period.
(c) All
percentages resulting from any calculations on the Debt
Securities 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 (e.g.,
9.876545% (or .09876545) being rounded to 9.87655% (or
.0987655)), and all dollar amounts used in or resulting from
such calculation will be rounded to the nearest cent (with
one-half cent being rounded upward).
(d) As
soon as practicable following each LIBOR Determination Date,
but in no event later than the 30th day following such LIBOR
Determination Date, the Calculation Agent shall notify, in
writing, the Company and the Paying Agent of the applicable
Interest Rate in effect for the related Interest Payment
Period. The Calculation Agent shall, upon the request of any
Securityholder, provide the Interest Rate then in effect. All
calculations made by the Calculation Agent in the absence of
manifest error shall be conclusive for all purposes
and
binding
on the Company and the Securityholder. Any error in
a calculation of the Interest Rate by the Calculation Agent
may be corrected at any time by the delivery of notice of such
corrected Interest Rate as provided above. The Paying Agent
shall be entitled to rely on information received from the
Calculation Agent or the Company as to the Interest Rate. The
Company shall, from time to time, provide any necessary
information to the Paying Agent relating to any original issue
discount and interest on the Debt Securities that is included
in any payment and reportable for taxable income calculation
purposes.
SECTION
2.11. Extension of
Interest Payment Period .
So
long as no Event of Default leading to an acceleration event
pursuant to paragraphs (c), (e), (f) or (g) of Section 5.01 of
the Indenture has occurred and is continuing, the Company
shall have the right under the Indenture, from time to time
and without causing an Event of Default, to defer payments of
interest on the Debt Securities by extending the interest
distribution period on the Debt Securities at any time and
from time to time during the term of the Debt Securities, for
up to twenty consecutive quarterly periods (each such extended
interest distribution period, an "Extension Period"), during
which Extension Period no interest shall be due and payable
(except any Additional Interest that may be due and payable).
No Extension Period may end on a date other than an Interest
Payment Date or extend beyond the Maturity Date, any
Redemption Date (to the extent redeemed) or any Special
Redemption Date. During any Extension Period, interest will
continue to accrue on the Debt Securities, and interest on
such accrued interest (such accrued interest and interest
thereon referred to herein as "Deferred Interest") will accrue
at an annual rate equal to the Interest Rate applicable during
such Extension Period, compounded quarterly from the date such
Deferred Interest would have been payable were it not for the
Extension Period, to the extent permitted by law. No interest
or Deferred Interest shall be due and payable during an
Extension Period, except at the end thereof. At the end of any
such Extension Period the Company shall pay all Deferred
Interest then accrued and unpaid on the Debt Securities;
provided
, however ,
that no Extension Period may extend beyond the Maturity Date,
Redemption Date (to the extent redeemed) or Special Redemption
Date; and provided
further ,
however ,
that during any such Extension Period, the Company shall be
subject to the restrictions set forth in Section 3.08 of this
Indenture. Prior to the termination of any Extension Period,
the Company may further extend such period, provided
, that such period together with all such previous and further
consecutive extensions thereof shall not exceed twenty
consecutive quarterly periods, or extend beyond the Maturity
Date, Redemption Date (to the extent redeemed) or Special
Redemption Date. Upon the termination of any Extension Period
and upon the payment of all Deferred Interest, the Company may
commence a new Extension Period, subject to the foregoing
requirements. The Company must give the Trustee notice of its
election to begin such Extension Period ("Notice") not later
than the related regular record date for the relevant Interest
Payment Date. The Notice shall describe, in reasonable detail,
why the Company has elected to begin an Extension
Period. The Notice shall acknowledge and affirm the
Company's understanding that it is prohibited from issuing
dividends and other distributions during the Extension
Period. Upon receipt of the Notice, an Initial
Purchaser shall have the right, at its sole discretion, to
disclose the name of the Company, the fact that the Company
has elected to begin an Extension Period and other information
that such Initial Purchaser, at its sole discretion, deems
relevant to the Company's election to begin an Extension
Period. The Trustee shall give notice of the
Company's election to begin a new Extension Period to the
Securityholders.
SECTION
2.12. CUSIP
Numbers .
The
Company in issuing the Debt Securities may use a "CUSIP"
number (if then generally in use), and, if so, the Trustee
shall use a "CUSIP" number in notices of redemption as a
convenience to Securityholders; provided
, that any such notice may state that no representation is
made as to the correctness of such number either as printed on
the Debt Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other
identification numbers printed on the Debt Securities, and any
such redemption shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the
Trustee in writing of any change in the CUSIP
number.
SECTION
2.13. Global
Debentures .
(a) Upon
the election of a holder of Outstanding Debt Securities, which
election need not be in writing, the Debt Securities owned by
such holder shall be issued in the form of one or more Global
Debentures registered in the name of the Depositary or its
nominee. Each Global Debenture issued under this
Indenture shall be registered in the name of the Depositary
designated by the Company for such Global Debenture or a
nominee thereof and delivered to such Depositary or a nominee
thereof or custodian therefor, and each such Global Debenture
shall constitute a single Debt Security for all purposes of
this Indenture.
(b) Notwithstanding
any other provision in this Indenture, no Global Debenture may
be exchanged in whole or in part for Debt Securities
registered, and no transfer of a Global Debenture in whole or
in part may be registered, in the name of any Person other
than the Depositary for such Global Debenture or a nominee
thereof unless (i) such Depositary advises the Trustee and the
Company in writing that such Depositary is no longer willing
or able to properly discharge its responsibilities as
Depositary with respect to such Global Debenture, and no
qualified successor is appointed by the Company within ninety
(90) days of receipt by the Company of such notice, (ii) such
Depositary ceases to be a clearing agency registered under the
Exchange Act and no successor is appointed by the Company
within ninety (90) days after obtaining knowledge of such
event, (iii) the Company executes and delivers to the Trustee
a company order stating that the Company elects to terminate
the book-entry system through the Depositary or (iv) an Event
of Default shall have occurred and be
continuing. Upon the occurrence of any event
specified in clause (i), (ii), (iii) or (iv) above, the
Trustee shall notify the Depositary and instruct the
Depositary to notify all owners of beneficial interests in
such Global Debenture of the occurrence of such event and of
the availability of Debt Securities to such owners of
beneficial interests requesting the same. Upon the
issuance of such Debt Securities and the registration in the
Debt Security Register of such Debt Securities in the names of
the holders of the beneficial interests therein, the Trustee
shall recognize such holders of beneficial interests as
holders thereof.
(c) If
any Global Debenture is to be exchanged for other Debt
Securities or canceled in part, or if another Debt Security is
to be exchanged in whole or in part for a beneficial interest
in any Global Debenture, then either (i) such Global Debenture
shall be so surrendered for exchange or cancellation as
provided in this Article
II or (ii) the principal amount thereof shall be
reduced or increased by an amount equal to the portion thereof
to be so exchanged or canceled, or equal to the principal
amount of such other Debt Security to be so
exchanged
for a beneficial interest therein, as the case may be, by
means of an appropriate adjustment made on the records of the
Debt Security Registrar, whereupon the Trustee, in accordance
with the applicable depository procedures, shall instruct the
Depositary or its authorized representative to make a
corresponding adjustment to its records. Upon any
such surrender or adjustment of a Global Debenture by the
Depositary, accompanied by registration instructions, the
Company shall execute and the Trustee shall, upon receipt of a
Company order, authenticate and deliver any Debt Securities
issuable in exchange for such Global Debenture (or any portion
thereof) in accordance with the instructions of the
Depositary. The Trustee shall not be liable for any
delay in delivery of such instructions and may conclusively
rely on, and shall be fully protected in relying on, such
instructions.
(d) Every
Debt Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global
Debenture or any portion thereof shall be authenticated and
delivered in the form of, and shall be, a Global Debenture,
unless such Debt Security is registered in the name of a
Person other than the Depositary for such Global Debenture or
a nominee thereof.
(e) Debt
Securities distributed to holders of Book-Entry Capital
Securities (as defined in the Trust Agreement) upon the
dissolution of the Trust shall be distributed in the form of
one or more Global Debentures registered in the name of a
Depositary or its nominee, and deposited with the Debt
Security Registrar, as custodian for such Depositary, or with
such Depositary, for credit by the Depositary to the
respective accounts of the beneficial owners of the Debt
Securities represented thereby (or such other accounts as they
may direct). Debt Securities distributed to holders
of Capital Securities other than Book-Entry Capital Securities
upon the dissolution of the Trust shall not be issued in the
form of a Global Debenture or any other form intended to
facilitate book-entry trading in beneficial interests in such
Debt Securities.
(f) The
Depositary or its nominee, as the registered owner of a Global
Debenture, shall be the holder of such Global Debenture for
all purposes under this Indenture and the Debt Securities, and
owners of beneficial interests in a Global Debenture shall
hold such interests pursuant to the Applicable Depository
Procedures. Accordingly, any such owner's
beneficial interest in a Global Debenture shall be shown only
on, and the transfer of such interest shall be effected only
through, records maintained by the Depositary or its nominee
or its Depositary Participants. The Debt Security
Registrar and the Trustee shall be entitled to deal with the
Depositary for all purposes of this Indenture relating to a
Global Debenture (including the payment of principal and
interest thereon and the giving of instructions or directions
by owners of beneficial interests therein and the giving of
notices) as the sole holder of the Debt Security and shall
have no obligations to the owners of beneficial interests
therein. Neither the Trustee nor the Debt Security
Registrar shall have any liability in respect of any transfers
affected by the Depositary.
(g) The
rights of owners of beneficial interests in a Global Debenture
shall be exercised only through the Depositary and shall be
limited to those established by law and agreements between
such owners and the Depositary and/or its Depositary
Participants.
(h) No
holder of any beneficial interest in any Global Debenture held
on its behalf by a Depositary shall have any rights under this
Indenture with respect to such Global
Debenture,
and such Depositary may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the owner of
such Global Debenture for all purposes
whatsoever. None of the Company, the Trustee nor
any agent of the Company or the Trustee will have any
responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial
ownership interests of a Global Debenture or maintaining,
supervising or reviewing any records relating to such
beneficial ownership interests. Notwithstanding the
foregoing, 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 such holders of beneficial interests, the
operation of customary practices governing the exercise of the
rights of the Depositary (or its nominee) as holder of any
Debt Security.
SECTION
2.14. Income Tax
Certification.
As
a condition to the payment of any principal of or interest on
the Debt Securities without the imposition of withholding tax,
the Trustee shall require the previous delivery of
properly completed and signed applicable U.S. federal income
tax certifications (generally, an Internal Revenue Service
Form W-9 (or applicable successor form) in the case of a
person that is a "United States person" within the meaning of
Section 7701(a)(30) of the Code or an Internal Revenue Service
Form W-8 (or applicable successor form) in the case of a
person that is not a "United States person" within the meaning
of Section 7701(a)(30) of the Code, and any other
certification acceptable to it to enable the Trustee or any
Paying Agent to determine their respective duties and
liabilities with respect to any taxes or other charges that
they may be required to pay, deduct or withhold in respect of
such Debt Securities.
ARTICLE
III
PARTICULAR
COVENANTS OF THE COMPANY
SECTION
3.01. Payment of
Principal, Premium and Interest; Agreed Treatment of the Debt
Securities .
(a) The
Company covenants and agrees that it will duly and punctually
pay or cause to be paid all payments due on the Debt
Securities at the place, at the respective times and in the
manner provided in this Indenture and the Debt Securities. At
the option of the Company, each installment of interest on the
Debt Securities may be paid (i) by mailing checks for such
interest payable to the order of the Securityholders entitled
thereto as they appear on the Debt Security Register or (ii)
by wire transfer to any account with a banking institution
located in the United States designated by such Person to the
Paying Agent no later than the related record
date.
(b) The
Company will treat the Debt Securities as indebtedness, and
the interest payable in respect of such Debt Securities as
interest, for all U.S. federal income tax purposes. All
payments in respect of such Debt Securities will be made free
and clear of U.S. withholding tax to any beneficial owner
thereof that has provided an Internal Revenue Service Form W-8
BEN (or any substitute or successor form) establishing its
non-U.S. status for U.S. federal income tax
purposes.
As
of the date of this Indenture, the Company represents that it
has no intention to exercise its right under Section 2.11 to
defer payments of interest on the Debt Securities by
commencing an Extension Period.
(c) As
of the date of this Indenture, the Company represents that the
likelihood that it would exercise its right under Section 2.11
to defer payments of interest on the Debt Securities by
commencing an Extension Period at any time during which the
Debt Securities are outstanding is remote because of the
restrictions that would be imposed on the Company's ability to
declare or pay dividends or distributions on, or to redeem,
purchase or make a liquidation payment with respect to, any of
its outstanding equity and on the Company's ability to make
any payments of principal of or interest on, or repurchase or
redeem, any of its debt securities that rank pari passu in all
respects with (or junior in interest to) the Debt
Securities.
SECTION
3.02. Offices for
Notices and Payments, etc.
So
long as any of the Debt Securities remain outstanding, the
Company will maintain in Wilmington, Delaware an office or
agency where the Debt Securities may be presented for payment,
an office or agency where the Debt Securities may be presented
for registration of transfer and for exchange as provided in
this Indenture and an office or agency where notices and
demands to or upon the Company in respect of the Debt
Securities or of this Indenture may be served. The Company
will give to the Trustee written notice of the location of any
such office or agency and of any change of location thereof.
Until otherwise designated from time to time by the Company in
a notice to the Trustee, or specified as contemplated by
Section 2.05, such office or agency for all of the above
purposes shall be the Principal Office of the Trustee. In case
the Company shall fail to maintain any such office or agency
in Wilmington, Delaware or shall fail to give such notice of
the location or of any change in the location thereof,
presentations and demands may be made and notices may be
served at the Principal Office of the Trustee.
In
addition to any such office or agency, the Company may from
time to time designate one or more offices or agencies outside
Wilmington, Delaware or where the Debt Securities may be
presented for registration of transfer and for exchange in the
manner provided in this Indenture, and the Company may from
time to time rescind such designation, as the Company may deem
desirable or expedient; provided
, however ,
that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain any such
office or agency in Wilmington, Delaware for the purposes
above mentioned. The Company will give to the Trustee prompt
written notice of any such designation or rescission
thereof.
SECTION
3.03. Appointments to
Fill Vacancies in Trustee's Office .
The
Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in
Section 6.09, a Trustee, so that there shall at all times be a
Trustee hereunder.
SECTION
3.04. Provision as to
Paying Agent .
(a) If
the Company shall appoint a Paying Agent other than the
Trustee, it will cause such Paying Agent to execute and
deliver to the Trustee an instrument in which such agent shall
agree with the Trustee, subject to the provision of this
Section 3.04:
(1) that
it will hold all sums held by it as such agent for the payment
of all payments due on the Debt Securities (whether such sums
have been paid to it by the Company or by any other obligor on
the Debt Securities) in trust for the benefit of the
Securityholders;
(2) that
it will give the Trustee prompt written notice of any failure
by the Company (or by any other obligor on the Debt
Securities) to make any payment on the Debt Securities when
the same shall be due and payable; and
(3) that
it will, at any time during the continuance of any Event of
Default, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying
Agent.
(b) If
the Company shall act as its own Paying Agent, it will, on or
before each due date of the payments due on the Debt
Securities, set aside, segregate and hold in trust for the
benefit of the Securityholders a sum sufficient to pay such
payments so becoming due and will notify the Trustee in
writing of any failure to take such action and of any failure
by the Company (or by any other obligor under the Debt
Securities) to make any payment on the Debt Securities when
the same shall become due and payable.
Whenever
the Company shall have one or more Paying Agents for the Debt
Securities, it will, on or prior to each due date of the
payments on the Debt Securities, deposit with a Paying Agent a
sum sufficient to pay all payments so becoming due, such sum
to be held in trust for the benefit of the Persons entitled
thereto and (unless such Paying Agent is the Trustee) the
Company shall promptly notify the Trustee in writing of its
action or failure to act.
(c) Anything
in this Section 3.04 to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a
satisfaction and discharge with respect to the Debt
Securities, or for any other reason, pay, or direct any Paying
Agent to pay to the Trustee all sums held in trust by the
Company or any such Paying Agent, such sums to be held by the
Trustee upon the same terms and conditions herein
contained.
(d) Anything
in this Section 3.04 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section
3.04 is subject to Sections 12.03 and 12.04.
(e) The
Company hereby initially appoints the Trustee to act as Paying
Agent (the "Paying Agent").
SECTION
3.05. Certificate to
Trustee .
The
Company will deliver to the Trustee on or before 120 days
after the end of each fiscal year, so long as Debt Securities
are outstanding hereunder, a Certificate stating that in the
course of the performance by the signers of their duties as
officers of the Company they would normally have knowledge of
any default by the Company in the performance of any covenants
of the Company contained herein, stating whether or not they
have knowledge of any such default and, if so, specifying each
such default of which the signers have knowledge and the
nature thereof.
SECTION
3.06. Additional
Interest .
If
and for so long as the Trust is the holder of all Debt
Securities and is subject to or otherwise required to pay, or
is required to withhold from distributions to holders of Trust
Securities, any additional taxes (including withholding
taxes), duties, assessments or other governmental charges as a
result of a Tax Event, the Company will pay such additional
amounts (the "Additional Interest") on the Debt Securities as
shall be required so that the net amounts received and
retained by the Trust for distribution to holders of Trust
Securities after paying all taxes (including withholding taxes
on distributions to holders of Trust Securities), duties,
assessments or other governmental charges will be equal to the
amounts the Trust would have received and retained for
distribution to holders of Trust Securities after paying all
taxes (including withholding taxes on distributions to holders
of Trust Securities), duties, assessments or other
governmental charges if no such additional taxes, duties,
assessments or other governmental charges had been imposed.
Whenever in this Indenture or the Debt Securities there is a
reference in any context to the payment of principal of or
premium, if any, or interest on the Debt Securities, such
mention shall be deemed to include mention of payments of the
Additional Interest provided for in this paragraph to the
extent that, in such context, Additional Interest is, was or
would be payable in respect thereof pursuant to the provisions
of this paragraph and express mention of the payment of
Additional Interest (if applicable) in any provisions hereof
shall not be construed as excluding Additional Interest in
those provisions hereof where such express mention is not
made, provided
, however ,
that, notwithstanding anything to the contrary contained in
this Indenture or any Debt Security, the deferral of the
payment of interest during an Extension Period pursuant to
Section 2.11 shall not defer the payment of any Additional
Interest that may be due and payable.
SECTION
3.07. Compliance with
Consolidation Provisions .
The
Company will not, while any of the Debt Securities remain
outstanding, consolidate with, or merge into any other Person,
or merge into itself, or sell, convey, transfer or otherwise
dispose of all or substantially all of its property or capital
stock to any other Person unless the provisions of Article XI
hereof are complied with.
SECTION
3.08. Limitation on
Dividends .
If
Debt Securities are initially issued to the Trust or a trustee
of such Trust in connection with the issuance of Trust
Securities by the Trust (regardless of whether Debt Securities
continue to be held by such Trust) and (i) there shall have
occurred and be continuing
an
Event of Default, (ii) the Company shall be in default with
respect to its payment of any obligations under the Capital
Securities Guarantee or (iii) the Company shall have given
notice of its election to defer payments of interest on the
Debt Securities by extending the interest distribution period
as provided herein and such period, or any extension thereof,
shall have commenced and be continuing, then the Company may
not (A) declare or pay any dividends or distributions on, or
redeem, purchase, acquire, or make a liquidation payment with
respect to, any of the Company's capital stock or (B) make any
payment of principal of or interest or premium, if any, on or
repay, repurchase or redeem any debt securities of the Company
that rank pari passu in all
respects with or junior in interest to the Debt Securities or
(C) make any payment under any guarantees of the Company that
rank pari
passu in all respects with or junior in interest to the
Capital Securities Guarantee (other than (a) repurchases,
redemptions or other acquisitions of shares of capital stock
of the Company (I) in connection with any employment contract,
benefit plan or other similar arrangement with or for the
benefit of one or more employees, officers, directors or
consultants, (II) in connection with a dividend reinvestment
or stockholder stock purchase plan or (III) in connection with
the issuance of capital stock of the Company (or securities
convertible into or exercisable for such capital stock), as
consideration in an acquisition transaction entered into prior
to the occurrence of (i), (ii) or (iii) above, (b) as a result
of any exchange, reclassification, combination or conversion
of any class or series of the Company's capital stock (or any
capital stock of a subsidiary of the Company) for any class or
series of the Company's capital stock or of any class or
series of the Company's indebtedness for any class or series
of the Company's capital stock, (c) the purchase of fractional
interests in shares of the Company's capital stock pursuant to
the conversion or exchange provisions of such capital stock or
the security being converted or exchanged, (d) any declaration
of a dividend in connection with any stockholder's rights
plan, or the issuance of rights, stock or other property under
any stockholder's rights plan, or the redemption or repurchase
of rights pursuant thereto, or (e) any dividend in the form of
stock, warrants, options or other rights where the dividend
stock or the stock issuable upon exercise of such warrants,
options or other rights is the same stock as that on which the
dividend is being paid or ranks pari passu with
or junior to such stock).
SECTION
3.09. Covenants as to
the Trust .
For
so long as such Trust Securities remain outstanding, the
Company shall maintain 100% ownership of the Common
Securities; provided
, however ,
that any permitted successor of the Company under this
Indenture that is a U.S. Person may succeed to the
Company’s ownership of such Common Securities. The
Company, as owner of the Common Securities, shall use
commercially reasonable efforts to cause the Trust (a) to
remain a statutory trust, except in connection with a
distribution of Debt Securities to the holders of Trust
Securities in liquidation of the Trust, the redemption of all
of the Trust Securities or certain mergers, consolidations or
amalgamations, each as permitted by the Declaration, (b) to
otherwise continue to be classified as a grantor trust for
United States federal income tax purposes and (c) to cause
each holder of Trust Securities to be treated as owning an
undivided beneficial interest in the Debt
Securities.
ARTICLE
IV
LISTS
AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION
4.01. Securityholders'
Lists .
The
Company covenants and agrees that it will furnish or cause to
be furnished to the Trustee:
(a) on
each regular record date for an Interest Payment Date, a list,
in such form as the Trustee may reasonably require, of the
names and addresses of the Securityholders of the Debt
Securities as of such record date; and
(b) at
such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request,
a list of similar form and content as of a date not more than
15 days prior to the time such list is furnished;
except
that no such lists need be furnished under this Section 4.01
so long as the Trustee is in possession thereof by reason of
its acting as Debt Security Registrar.
SECTION
4.02. Preservation and
Disclosure of Lists .
(a) The
Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of
the Securityholders (1) contained in the most recent list
furnished to it as provided in Section 4.01 or (2) received by
it in the capacity of Debt Security Registrar (if so acting)
hereunder. The Trustee may destroy any list furnished to it as
provided in Section 4.01 upon receipt of a new list so
furnished.
(b) In
case three or more holders of Debt Securities (hereinafter
referred to as "applicants") apply in writing to the Trustee
and furnish to the Trustee reasonable proof that each such
applicant has owned a Debt Security for a period of at least
six months preceding the date of such application, and such
application states that the applicants desire to communicate
with other Securityholders with respect to their rights under
this Indenture or under such Debt Securities and is
accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then
the Trustee shall within five Business Days after the receipt
of such application, at its election either:
(1) afford
such applicants access to the information preserved at the
time by the Trustee in accordance with the provisions of
subsection (a) of this Section 4.02, or
(2) inform
such applicants as to the approximate number of
Securityholders whose names and addresses appear in the
information preserved at the time by the Trustee in accordance
with the provisions of subsection (a) of this Section 4.02,
and as to the approximate cost of mailing to such
Securityholders the form of proxy or other communication, if
any, specified in such application.
If
the Trustee shall elect not to afford such applicants access
to such information, the Trustee shall, upon the written
request of such applicants, mail to each Securityholder of
Debt Securities whose name and address appear in the
information preserved at the time by the Trustee in accordance
with the provisions of subsection (a) of this Section 4.02 a
copy of the form of proxy or other communication which is
specified in such request with reasonable promptness after a
tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable
expenses of mailing, unless within five days after such
tender, the Trustee shall mail to such applicants and file
with the Securities and Exchange Commission, if permitted or
required by applicable law, together with a copy of the
material to be mailed, a written statement to the effect that,
in the opinion of the Trustee, such mailing would be contrary
to the best interests of the holders of all Debt Securities,
as the case may be, or would be in violation of applicable
law. Such written statement shall specify the basis of such
opinion. If said Commission, as permitted or required by
applicable law, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections or
if, after the entry of an order sustaining one or more of such
objections, said Commission shall find, after notice and
opportunity for hearing, that all the objections so sustained
have been met and shall enter an order so declaring, the
Trustee shall mail copies of such material to all such
Securityholders with reasonable promptness after the entry of
such order and the renewal of such tender; otherwise the
Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Each
and every Securityholder, by receiving and holding the same,
agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any Paying Agent shall be held
accountable by reason of the disclosure of any such
information as to the names and addresses of the
Securityholders in accordance with the provisions of
subsection (b) of this Section 4.02, regardless of the source
from which such information was derived, and that the Trustee
shall not be held accountable by reason of mailing any
material pursuant to a request made under said subsection
(b).
SECTION
4.03. Financial and
Other Information.
The Company shall deliver
to each Securityholder (1) each Report on Form 10-K and Form
10-Q prepared by the Company and filed with the Securities
and Exchange Commission in accordance with the Exchange Act
within 7 days after the filing thereof, (2) if the Company is
not then (y) subject to Section 13 or 15(d) of the Exchange
Act or (z) exempt from reporting pursuant to Rule 12g3-2(b)
thereunder, the Company shall be required to provide within
45 days of the end of each calendar quarterly period and 90
days after the end of each calendar year, the information
required to be provided by Rule 144A(d)(4) under the
Securities Act and (3) within 30 days after the end of the
fiscal year of the Company, Form 1099 or such other annual
U.S. federal income tax information statement required by the
Code containing such information with regard to the Debt
Securities held by such Securityholder as is required by the
Code and the income tax regulations of the U.S. Treasury
thereunder.
The Company will cause
copies of its regulatory reports to be delivered to the
Holder promptly following their filing with the Federal
Reserve.
ARTICLE
V
REMEDIES
OF THE TRUSTEE AND SECURITYHOLDERS UPON AN EVENT OF
DEFAULT
SECTION
5.01. Events of
Default .
The
following events shall be "Events of Default" with respect to
Debt Securities:
(a) the
Company defaults in the payment of any interest upon any Debt
Security when it becomes due and payable (unless the Company
has elected and may defer interest payments pursuant to
Section 2.11), and continuance of such default for a period of
30 days; for the avoidance of doubt, an extension of any
interest distribution period by the Company in accordance with
Section 2.11 of this Indenture shall not constitute a default
under this clause 5.01(a); or
(b) the
Company defaults in the payment of all or any part of the
principal of (or premium, if any, on) any Debt Securities as
and when the same shall become due and payable either at
maturity, upon redemption, by declaration of acceleration
pursuant to Section 5.01 of this Indenture or otherwise;
or
(c) the
Company defaults in the payment of any interest upon any Debt
Security when it becomes due and payable following the
nonpayment of any such interest for 20 or more consecutive
quarterly periods; or
(d) the
Company defaults in the performance of, or breaches, any of
its covenants or agreements in Sections 3.06, 3.07, 3.08 or
3.09 of this Indenture and continuance of such default or
breach for a period of 30 days after there has been given, by
registered or certified mail, to the Company by the Trustee or
to the Company and the Trustee by the holders of not less than
25% in aggregate principal amount of the outstanding Debt
Securities, a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
(e) a
court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Company in an
involuntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect, or appoints a
receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Company or for any
substantial part of its property, or orders the winding-up or
liquidation of its affairs and such decree or order shall
remain unstayed and in effect for a period of 90 consecutive
days; or
(f) the
Company shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter
in effect, shall consent to the entry of an order for relief
in an involuntary case under any such law, or shall consent to
the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or
other similar official) of the Company or of any substantial
part of its property, or shall make any general assignment for
the benefit of creditors, or shall fail generally to pay its
debts as they become due; or
the
Trust shall have voluntarily or involuntarily liquidated,
dissolved, wound-up its business or otherwise terminated its
existence except in connection with (1) the distribution of
the Debt Securities to holders of the Trust Securities in
liquidation of their interests in the Trust, (2) the
redemption of all of the outstanding Trust Securities or (3)
certain mergers, consolidations or amalgamations, each as
permitted by the Declaration.
If
an Event of Default specified under clause (c) of this Section
5.01 occurs and is continuing with respect to the Debt
Securities, then, and in each and every such case, unless the
principal of the Debt Securities shall have already become due
and payable, either the Trustee or the holders of not less
than 25% in aggregate principal amount of the Debt Securities
then outstanding hereunder, by notice in writing to the
Company (and to the Trustee if given by Securityholders), may
declare the entire principal of the Debt Securities and any
premium and interest accrued, but unpaid, thereon, if any, to
be due and payable immediately, and upon any such declaration
the same shall become immediately due and
payable. If an Event of Default specified under
clause (e), (f) or (g) of this Section 5.01 occurs, then, in
each and every such case, the entire principal amount of the
Debt Securities and any premium and interest accrued, but
unpaid, thereon shall ipso facto become
immediately due and payable without further
action. Notwithstanding anything to the contrary in
this Section 5.01, if at any time during the period in which
this Indenture remains in force and effect, the Company ceases
or elects to cease to be subject to the supervision and
regulations of the Federal Reserve, OTS, OCC or similar
regulatory authority overseeing bank, thrift, savings and loan
or financial holding companies or similar institutions
requiring specifications for the treatment of capital similar
in nature to the capital adequacy guidelines under the Federal
Reserve rules and regulations, then the first sentence of this
paragraph shall be deemed to include clauses (a), (b) and (d)
under this Section 5.01 as an Event of Default resulting in an
acceleration of payment of the Debt Securities to the same
extent as provided herein for clause (c).
Anything
in this Section 5.01 to the contrary notwithstanding, if an
Event of Default specified under clause (d) occurs and is
continuing, then, and in each and every such case, the
Trustee, in its own name and as trustee of an express trust,
shall be entitled to pursue all available remedies at law
and/or equity against the Company. The Company
acknowledges and affirms that in the event of breach of such
covenants and agreements referenced in clause (d) of this
Section 5.01, the damages to the holders of the Debt
Securities and the Capital Securities may be difficult or
impossible to ascertain. Therefore, in addition to
any remedies available at law for breach of any or all of said
covenants or agreements, the holders of the Debt Securities
and the Capital Securities shall be entitled to injunctive or
other equitable relief in connection with the violation of any
such covenants or agreements referenced in Section
5.01(d).
The
foregoing provisions, however, are subject to the condition
that if, at any time after the principal of the Debt
Securities shall have been so declared due and payable, and
before any judgment or decree for the payment of the moneys
due shall have been obtained or entered as hereinafter
provided, (i) th
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