Exhibit 4.1
-----------
JUNIOR SUBORDINATED INDENTURE
between
WESBANCO, INC.
and
THE BANK OF NEW YORK,
as Trustee
Dated as of June 19, 2003
TABLE OF CONTENTS
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ARTICLE I
Definitions and Other Provisions of General Application
Section 1.1. Definitions............................................ 1
Section 1.2. Compliance Certificate and Opinions................... 10
Section 1.3. Forms of Documents Delivered to Trustee .............. 10
Section 1.4. Acts of Holders ...................................... 11
Section 1.5. Notices, Etc. to Trustee and Company.................. 13
Section 1.6. Notice to Holders; Waiver............................. 13
Section 1.7. Effect of Headings and Table of Contents.............. 13
Section 1.8. Successors and Assigns ............................... 13
Section 1.9. Separability Clause................................... 14
Section 1.10. Benefits of Indenture................................. 14
Section 1.11. Governing Law......................................... 14
Section 1.12. Submission to Jurisdiction ........................... 14
Section 1.13. Non-Business Days .................................... 14
ARTICLE II
Security Forms
Section 2.1. Form of Security ..................................... 15
Section 2.2. Restricted Legend .................................... 20
Section 2.3. Form of Trustee's Certificate of Authentication....... 22
Section 2.4. Temporary Securities.................................. 22
Section 2.5. Definitive Securities ................................ 23
ARTICLE III
The Securities
Section 3.1. Payment of Principal and Interest .................... 23
Section 3.2. Denominations......................................... 25
Section 3.3. Execution, Authentication, Delivery and Dating........ 25
Section 3.4. Global Securities .................................... 26
Section 3.5. Registration, Transfer and Exchange Generally......... 28
Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities...... 29
Section 3.7. Persons Deemed Owners................................. 29
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Section 3.8. Cancellation ......................................... 30
Section 3.9. Deferrals of Interest Payment Dates................... 30
Section 3.10. Right of Set-Off...................................... 31
Section 3.11. Agreed Tax Treatment.................................. 31
Section 3.12. CUSIP Numbers......................................... 31
ARTICLE IV
Satisfaction and Discharge
Section 4.1. Satisfaction and Discharge of Indenture............... 31
Section 4.2. Application of Trust Money............................ 32
ARTICLE V
Remedies
Section 5.1. Events of Default..................................... 33
Section 5.2. Acceleration of Maturity; Rescission and Annulment.... 34
Section 5.3. Collection of Indebtedness and Suits for
Enforcement by Trustee............................. 35
Section 5.4. Trustee May File Proofs of Claim...................... 36
Section 5.5. Trustee May Enforce Claim Without Possession of
Securities......................................... 36
Section 5.6. Application of Money Collected ....................... 36
Section 5.7. Limitation on Suits................................... 37
Section 5.8. Unconditional Right of Holders to Receive Principal,
Premium and Interest; Direct Action by Holders of
Preferred Securities............................... 37
Section 5.9. Restoration of Rights and Remedies ................... 37
Section 5.10. Rights and Remedies Cumulative........................ 38
Section 5.11. Delay or Omission Not Waiver.......................... 38
Section 5.12. Control by Holders.................................... 38
Section 5.13. Waiver of Past Defaults............................... 38
Section 5.14. Undertaking for Costs................................. 39
Section 5.15. Waiver of Usury, Stay or Extension Laws............... 39
ARTICLE VI
The Trustee
Section 6.1. Corporate Trustee Required............................ 40
Section 6.2. Certain Duties and Responsibilities................... 40
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(continued)
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Section 6.3. Notice of Defaults.................................... 41
Section 6.4. Certain Rights of Trustee............................. 41
Section 6.5. May Hold Securities................................... 43
Section 6.6. Compensation; Reimbursement; Indemnity................ 43
Section 6.7. Resignation and Removal; Appointment of Successor..... 44
Section 6.8. Acceptance of Appointment by Successor ............... 45
Section 6.9. Merger, Conversion, Consolidation or Succession
to Business........................................ 45
Section 6.10. Not Responsible for Recitals or Issuance of Securities 46
Section 6.11. Appointment of Authenticating Agent .................. 46
ARTICLE VII
Holder's Lists and Reports by Trustee And Company
Section 7.1. Company to Furnish Trustee Names and Addresses
of Holders ........................................ 47
Section 7.2. Preservation of Information, Communications to Holders 48
Section 7.3. Reports by Company.................................... 48
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.1. Company May Consolidate, Etc., Only on Certain Terms.. 49
Section 8.2. Successor Company Substituted ....................... 49
ARTICLE IX
Supplemental Indentures
Section 9.1. Supplemental Indentures without Consent of Holders.... 50
Section 9.2. Supplemental Indentures with Consent of Holders....... 50
Section 9.3. Execution of Supplemental Indentures.................. 51
Section 9.4. Effect of Supplemental Indentures..................... 52
Section 9.5. Reference in Securities to Supplemental Indentures.... 52
ARTICLE X
Covenants
Section 10.1. Payment of Principal, Premium and Interest............ 52
Section 10.2. Money for Security Payments to be Held in Trust....... 52
Section 10.3. Statement as to Compliance............................ 53
Section 10.4. Calculation Agent..................................... 53
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Section 10.5. Additional Tax Sums................................... 54
Section 10.6. Additional Covenants.................................. 55
Section 10.7. Waiver of Covenants................................... 55
Section 10.8. Treatment of Securities............................... 56
ARTICLE XI
Redemption of Securities
Section 11.1. Optional Redemption................................... 56
Section 11.2. Special Event Redemption.............................. 56
Section 11.3. Election to Redeem; Notice to Trustee................. 56
Section 11.4. Selection of Securities to be Redeemed................ 57
Section 11.5. Notice of Redemption.................................. 57
Section 11.6. Deposit of Redemption Price........................... 58
Section 11.7. Payment of Securities Called for Redemption........... 58
ARTICLE XII
Subordination of Securities
Section 12.1. Securities Subordinate to Senior Debt................. 59
Section 12.2. No Payment When Senior Debt in Default; Payment
Over of Proceeds Upon Dissolution, Etc............ 59
Section 12.3. Payment Permitted If No Default....................... 61
Section 12.4. Subrogation to Rights of Holders of Senior Debt....... 61
Section 12.5. Provisions Solely to Define Relative Rights........... 61
Section 12.6. Trustee to Effectuate Subordination................... 62
Section 12.7. No Waiver of Subordination Provisions................. 62
Section 12.8. Notice to Trustee..................................... 62
Section 12.9. Reliance on Judicial Order or Certificate of
Liquidating Agent................................. 63
Section 12.10. Trustee Not Fiduciary for Holders of Senior Debt...... 63
Section 12.11. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights.................. 63
Section 12.12. Article Applicable to Paying Agents................... 63
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TABLE OF CONTENTS
(continued)
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SCHEDULES
Schedule A - Determination of LIBOR
Exhibit A - Form of Officer's Certificate
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JUNIOR SUBORDINATED INDENTURE, dated as of June 19, 2003, between
WESBANCO, INC., a West Virginia corporation (the "Company"), and
THE BANK OF NEW YORK, a New York banking corporation, as Trustee (in
such capacity, the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance of its
unsecured junior subordinated deferrable interest notes (the
"Securities") issued to evidence loans made to the Company of
the proceeds from the issuance by WesBanco Capital Trust II, a
Delaware statutory trust (the "Trust"), of undivided preferred
beneficial interests in the assets of the Trust (the "Preferred
Securities") and undivided common beneficial interests in the
assets of the Trust (the "Common Securities" and, collectively
with the Preferred Securities, the "Trust Securities"), and to
provide the terms and conditions upon which the Securities are
to be authenticated, issued and delivered; and
WHEREAS, all things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have
been done.
Now, therefore, this Indenture Witnesseth:
For and in consideration of the premises and the purchase
of the Securities by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit
of all Holders of the Securities, as follows:
ARTICLE I
Definitions and Other Provisions of General Application
SECTION 1.1. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article I have the
meanings assigned to them in this Article I;
(b) the words "include", "includes" and "including"
shall be deemed to be followed by the phrase "without
limitation";
(c) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with GAAP;
(d) unless the context otherwise requires, any
reference to an "Article" or a "Section" refers to an
Article or a Section, as the case may be, of this
Indenture;
(e) the words "hereby", "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;
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(f) a reference to the singular includes the plural
and vice versa; and
(g) the masculine, feminine or neuter genders used
herein shall include the masculine, feminine and neuter
genders.
"Act" when used with respect to any Holder, has the meaning
specified in Section 1.4.
"Administrative Trustee" means, with respect to the Trust,
a Person identified as an "Administrative Trustee" in the Trust
Agreement, solely in its capacity as Administrative Trustee of
the Trust under the Trust Agreement and not in its individual
capacity, or its successor in interest in such capacity, or any
successor Administrative Trustee appointed as therein provided.
"Additional Interest" means the interest, if any, that
shall accrue on any amounts payable on the Securities, the
payment of which has not been made on the applicable Interest
Payment Date and which shall accrue at the rate per annum
specified or determined as specified in such Security.
"Additional Tax Sums" has the meaning specified in Section 10.5.
"Additional Taxes" means taxes, duties or other
governmental charges imposed on the Trust as a result of a Tax
Event (which, for the sake of clarity, does not include amounts
required to be deducted or withheld by the Trust from payments
made by the Trust to or for the benefit of the Holder of, or any
Person that acquires a beneficial interest in, the Securities).
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person.
For the purposes of this definition, "control," when used with
respect to any specified Person, means the power to direct the
management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Applicable Depository Procedures" means, with respect to
any transfer or transaction involving a Global Security or
beneficial interest therein, the rules and procedures of the
Depositary for such Security, in each case to the extent
applicable to such transaction and as in effect from time to
time.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 6.11 to act on behalf of the Trustee
to authenticate the Securities.
"Bankruptcy Code" means Title 11 of the United States Code
or any successor statute thereto, in each case as amended from
time to time.
"Board of Directors" means the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified
by the Secretary or an Assistant Secretary of the 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.
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"Business Day" means any day other than (i) a Saturday or
Sunday, (ii) a day on which banking institutions in the City of
New York are authorized or required by law or executive order to
remain closed or (iii) a day on which the Corporate Trust Office
of the Trustee is closed for business.
"Calculation Agent" has the meaning specified in Section 10.4.
"Capital Disqualification Event" means the receipt by the
Company of an Opinion of Counsel experienced in such matters
that, as a result of an amendment to or a change in law or
regulation (including any announced prospective change) or a
change in interpretation or application of law or regulation by
any legislative body, court, governmental agency or regulatory
authority, there is more than insubstantial risk that within
ninety (90) days of the date of such opinion, the aggregate
principal amount of the Securities will not be eligible to be
treated by the Company as "Tier 1 Capital" (or the then
equivalent) for purposes of the capital adequacy guidelines of
the Federal Reserve Board or other "appropriate Federal banking
agency" as such term is defined in 12 U.S.C. 1813(q), which
amendment, change or prospective change becomes effective or
would become effective, as the case may be, on or after the date
of issuance of the Securities; provided, however, that the
inability of the Company to treat all or any portion of the
principal amount of the Securities as Tier 1 Capital shall not
constitute the basis for a Capital Disqualification Event if
such inability results from the Company having such Securities
outstanding in an amount that for any reason is in excess of the
amount which may now or hereafter qualify for treatment as Tier
1 Capital under applicable capital adequacy guidelines.
"Common Securities" has the meaning specified in the first
recital of this Indenture.
"Common Stock" means the common stock, par value $2.0833
per share, of the Company.
"Company" means the Person named as the "Company" in the
first paragraph of this Indenture until a successor corporation
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Company" shall mean such
successor corporation.
"Company Request" and "Company Order" mean, respectively,
the written request or order signed in the name of the Company
by its Chairman of the Board of Directors, its Vice Chairman of
the Board of Directors, its Chief Executive Officer, President
or a Vice President, and by its Chief Financial Officer, its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date of this
Indenture is located at 101 Barclay Street, New York, New York
10286, Attention: Corporate Trust Administration.
"Debt" means, with respect to any Person, whether recourse
is to all or a portion of the assets of such Person, whether
currently existing or hereafter incurred and whether or not
contingent and without duplication, (i) every obligation of such
Person for money borrowed; (ii) every obligation of such Person
evidenced by bonds, debentures, notes or other similar
instruments, including obligations incurred in connection with
the acquisition of property, assets or businesses; (iii) every
reimbursement obligation of such Person with respect to letters of
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credit, bankers' acceptances or similar facilities issued for
the account of such Person; (iv) every obligation of such Person
issued or assumed as the deferred purchase price of property or
services (but excluding trade accounts payable or other accrued
liabilities arising in the ordinary course of business); (v)
every capital lease obligation of such Person; (vi) all
indebtedness of such Person, whether incurred on or prior to the
date of this Indenture or thereafter incurred, for claims in
respect of derivative products, including interest rate, foreign
exchange rate and commodity forward contracts, options and swaps
and similar arrangements; (vii) every obligation of the type
referred to in clauses (i) through (vi) of another Person and
all dividends of another Person the payment of which, in either
case, such Person has guaranteed or is responsible or liable
for, directly or indirectly, as obligor or otherwise; and (viii)
any renewals, extensions, refundings, amendments or
modifications of any obligation of the type referred to in
clauses (i) through (vii).
"Defaulted Interest" has the meaning specified in Section 3.1.
"Delaware Trustee" means, with respect to the Trust, the
Person identified as the "Delaware Trustee" in the Trust
Agreement, solely in its capacity as Delaware Trustee of the
Trust under the Trust Agreement and not in its individual
capacity, or its successor in interest in such capacity, or any
successor Delaware Trustee appointed as therein provided.
"Depositary" means an organization registered as a clearing
agency under the Exchange Act that is designated as Depositary
by the Company or any successor thereto. DTC will be the
initial Depositary.
"Depository Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time
to time a Depositary effects book-entry transfers and pledges of
securities deposited with the Depositary.
"Distributions" means amounts payable in respect of the
Trust Securities as provided in the Trust Agreement and referred
to therein as "Distributions."
"Dollar" or "$" means the currency of the United States of
America that, as at the time of payment, is legal tender for the
payment of public and private debts.
"DTC" means The Depository Trust Company, a New York
corporation.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934 or
any statute successor thereto, in each case as amended from time
to time.
"Expiration Date" has the meaning specified in Section 1.4.
"Extension Period" has the meaning specified in Section 3.9.
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System, as from time to time constituted, or if
at any time after the execution of this Indenture such Board is
not existing and performing the duties now assigned to it, then
the body performing such duties on such date.
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"GAAP" means United States generally accepted accounting
principles, consistently applied, from time to time in effect.
"Global Security" means a Security that evidences all or
part of the Securities, the ownership and transfers of which
shall be made through book entries by a Depositary.
"Government Obligation" means (a) any security that is (i)
a direct obligation of the United States of America of which the
full faith and credit of the United States of America is pledged
or (ii) an obligation of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States
of America or the payment of which is unconditionally guaranteed
as a full faith and credit obligation by the United States of
America, which, in either case (i) or (ii), is not callable or
redeemable at the option of the issuer thereof, and (b) any
depositary receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act) as custodian with respect to any
Government Obligation that is specified in clause (a) above and
held by such bank for the account of the holder of such
depositary receipt, or with respect to any specific payment of
principal of or interest on any Government Obligation that is so
specified and held, provided, that (except as required by law)
such custodian is not authorized to make any deduction from the
amount payable to the holder of such depositary receipt from any
amount received by the custodian in respect of the Government
Obligation or the specific payment of principal or interest
evidenced by such depositary receipt.
"Guarantee Agreement" means the Guarantee Agreement
executed by the Company and The Bank of New York, as Guarantee
Trustee, contemporaneously with the execution and delivery of
this Indenture, for the benefit of the holders of the Preferred
Securities, as modified, amended or supplemented from time to
time.
"Holder" means a Person in whose name a Security is
registered in the Securities Register.
"Indenture" means this instrument as originally executed or
as it may from time to time be amended or supplemented by one or
more amendments or indentures supplemental hereto entered into
pursuant to the applicable provisions hereof.
"Interest Payment Date" means March 15, June 15, September
15 and December 15 of each year, commencing on September 15,
2003, during the term of this Indenture.
"Investment Company Act" means the Investment Company Act
of 1940 or any successor statute thereto, in each case as
amended from time to time.
"Investment Company Event" means the receipt by the Company
of an Opinion of Counsel experienced in such matters to the
effect that, as a result of the occurrence of a change in law or
regulation (including any announced prospective change) or a
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 ninety (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,
which change or prospective change becomes effective or would
become effective, as the case may be, on or after the date of
the issuance of the Securities.
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"LIBOR" has the meaning specified in Schedule A.
"LIBOR Business Day" has the meaning specified in Schedule A.
"LIBOR Determination Date" has the meaning specified in Schedule A.
"Maturity," when used with respect to any Security, means
the date on which the principal of such Security or any
installment of principal becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind
specified in Section 5.1(c).
"Office of Thrift Supervision" means the Office of Thrift
Supervision, as from time to time constituted or, if at any time
after the execution of this Indenture such Office is not
existing and performing the duties now assigned to it, then the
body performing such duties at such time.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman of the Board, the Chief
Executive Officer, the President or a Vice President, and by the
Chief Financial Officer, the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary, of the Company and
delivered to the Trustee.
"Operative Documents" means the Trust Agreement, the
Indenture, the Purchase Agreement, the Guarantee Agreement and
the Securities.
"Opinion of Counsel" means a written opinion of counsel,
who may be counsel for or an employee of the Company or any
Affiliate of the Company.
"Original Issue Date" means the date of original issuance
of each Security.
"Outstanding" means, when used in reference to any
Securities, as of the date of determination, all Securities
theretofore authenticated and delivered under this Indenture,
except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with
the Trustee or any Paying Agent (other than the Company) in
trust or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the
Holders of such Securities; provided, that, if such
Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(iii) Securities that have been paid or in substitution
for or in lieu of which other Securities have been
authenticated and delivered pursuant to the provisions of
this Indenture, unless proof satisfactory to the Trustee is
presented that any such Securities are held by Holders in
whose hands such Securities are valid, binding and legal
obligations of the Company;
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provided, that, in determining whether the Holders of the
requisite principal amount of Outstanding Securities have given
any request, demand, authorization, direction, notice, consent
or waiver hereunder, Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed
not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver,
only Securities that a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded.
Securities so owned that have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with
respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor. Notwithstanding
anything herein to the contrary, Securities initially issued to
the Trust that are owned by the Trust shall be deemed to be
Outstanding notwithstanding the ownership by the Company or an
Affiliate of any beneficial interest in the Trust.
"Paying Agent" means the Trustee or any Person authorized
by the Company to pay the principal of or any premium or
interest on, or other amounts in respect of, any Securities on
behalf of the Company.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association,
joint stock company, limited liability company, trust,
unincorporated association, government or any agency or
political subdivision thereof, or any other entity of whatever
nature.
"Place of Payment" means, with respect to the Securities,
the Corporate Trust Office of the Trustee.
"Preferred Securities" has the meaning specified in the
first recital of this Indenture.
"Predecessor Security" of any particular Security means
every previous Security evidencing all or a portion of the same
debt as that evidenced by such particular Security. For the
purposes of this definition, any security authenticated and
delivered under Section 3.6 in lieu of a mutilated, destroyed,
lost or stolen Security shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Security.
"Proceeding" has the meaning specified in Section 12.2.
"Property Trustee" means the Person identified as the
"Property Trustee" in the Trust Agreement, solely in its
capacity as Property Trustee of the Trust under the Trust
Agreement and not in its individual capacity, or its successor
in interest in such capacity, or any successor Property Trustee
appointed as therein provided.
"Purchase Agreement" means the agreement, dated as of the
date hereof, between the Company and the Trust and Trapeza CDO
III, LLC.
"Redemption Date" means, when used with respect to any
Security to be redeemed, the date fixed for such redemption by
or pursuant to this Indenture.
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"Redemption Price" means, when used with respect to any
Security to be redeemed, in whole or in part, the price at which
such security or portion thereof is to be redeemed as fixed by
or pursuant to this Indenture.
"Reference Banks" has the meaning specified in Schedule A.
"Regular Record Date" for the interest payable on any
Interest Payment Date with respect to the Securities means the
date that is fifteen (15) days preceding such Interest Payment
Date (whether or not a Business Day).
"Responsible Officer" means, with respect to the Trustee,
any Senior Vice President, any Vice President, any Assistant
Vice President, the Secretary, any Assistant Secretary, the
Treasurer, any Assistant Treasurer, any Trust Officer or
Assistant Trust Officer, or any other officer of the Corporate
Trust Department of the Trustee 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.
"Rights Plan" means a plan of the Company providing for the
issuance by the Company to all holders of its Common Stock of
rights entitling the holders thereof to subscribe for or
purchase shares of any class or series of capital stock of the
Company which rights (i) are deemed to be transferred with such
shares of such Common Stock and (ii) are also issued in respect
of future issuances of such Common Stock, in each case until the
occurrence of a specified event or events.
"Securities" or "Security" means any debt securities or
debt security, as the case may be, authenticated and delivered
under this Indenture.
"Securities Act" means the Securities Act of 1933 or any
successor statute thereto, in each case as amended from time to
time.
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 3.5.
"Senior Debt" means the principal of and any premium and
interest on (including interest accruing on or after the filing
of any petition in bankruptcy or for reorganization relating to
the Company, whether or not such claim for post-petition
interest is allowed in such proceeding) all Debt of the Company,
whether incurred on or prior to the date of this Indenture or
thereafter incurred, unless it is provided in the instrument
creating or evidencing the same or pursuant to which the same is
outstanding, that such obligations are not superior in right of
payment to the Preferred Securities; provided, however, that if
the Company is subject to the regulation and supervision of an
"appropriate Federal banking agency" within the meaning of 12
U.S.C. 1813(q), the Company shall have received the approval of
such appropriate Federal banking agency prior to issuing any
such obligation; and provided, further, that Senior Debt shall
not include any other debt securities and guarantees in respect
of such debt securities issued to any trust other than the Trust
(or a trustee of any such trust), partnership or other entity
affiliated with the Company that is a financing vehicle of the
Company (a "financing entity") in connection with the issuance
by such financing entity of equity securities or other
securities that are treated as equity capital for regulatory
capital purposes guaranteed by the Company pursuant to an
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instrument that ranks pari passu with or junior in right of
payment to the Indenture, including, without limitation,
securities issued by WesBanco, Inc. Capital Trust I.
"Special Event" means the occurrence of a Capital Disqualification
Event, an Investment Company Event or a Tax Event.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.1.
"Stated Maturity" means June 30, 2033.
"Subsidiary" means a Person more than fifty percent (50%)
of the outstanding voting stock or other voting interests of
which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more
other Subsidiaries. For purposes of this definition, "voting
stock" means stock that ordinarily has voting power for the
election of directors, whether at all times or only so long as
no senior class of stock has such voting power by reason of any
contingency.
"Tax Event" means the receipt by the Company of an Opinion
of Counsel experienced in such matters to the effect that, as a
result of (a) any amendment to or change (including any
announced prospective change) in the laws or any regulations
thereunder of the United States or any political subdivision or
taxing authority thereof or therein or (b) any judicial decision
or any official administrative pronouncement (including any
private letter ruling, technical advice memorandum or field
service advice) or regulatory procedure, including any notice or
announcement of intent to adopt any such pronouncement or
procedure (an "Administrative Action"), regardless of whether
such judicial decision or Administrative Action 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, change, judicial decision or Administrative Action is
enacted, promulgated or announced, in each case, on or after the
date of issuance of the Securities, there is more than an
insubstantial risk that (i) the Trust is, or will be within
ninety (90) days of the date of such opinion, subject to United
States federal income tax with respect to income received or
accrued on the Securities, (ii) interest payable by the Company
on the Securities is not, or within ninety (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 ninety (90) days of the
date of such opinion, subject to more than a de minimis amount
of other taxes, duties or other governmental charges.
"Trust" has the meaning specified in the first recital of
this Indenture.
"Trust Agreement" means the Amended and Restated Trust
Agreement executed and delivered by the Company, the Property
Trustee, The Bank of New York (Delaware) and the Administrative
Trustees named therein, contemporaneously with the execution and
delivery of this Indenture, for the benefit of the holders of
the Trust Securities, as amended or supplemented from time to
time.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this instrument, solely in its capacity as
such and not in its individual capacity, until a successor
Trustee shall have become such pursuant to the applicable
provisions of this Indenture, and, thereafter, "Trustee" shall
mean or include each Person who is then a Trustee hereunder.
9
"Trust Indenture Act" means the Trust Indenture Act of
1939, as amended and as in effect on the date as of this
Indenture.
"Trust Securities" has the meaning specified in the first
recital of this Indenture.
SECTION 1.2. Compliance Certificate and Opinions.
(a) Upon any application or request by the Company to the
Trustee to take any action under any provision of this
Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent (including
covenants compliance with which constitutes a condition
precedent), if any, provided for in this Indenture relating to
the proposed action have been complied with and an Opinion of
Counsel stating that in the opinion of such counsel all such
conditions precedent (including covenants compliance with which
constitutes a condition precedent), if any, have been complied
with, except that, in the case of any such application or
request as to which the furnishing of such documents is
specifically required by any provision of this Indenture
relating to such particular application or request, no
additional certificate or opinion need be furnished.
(b) Every certificate with respect to compliance with a
condition or covenant provided for in this Indenture (other than
the certificate provided pursuant to Section 10.3) shall
include:
(i) a statement by each individual signing such
certificate or opinion that such individual has read such
covenant or condition and the definitions herein relating
thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions of such individual contained in such certificate
or opinion are based;
(iii) a statement that, in the opinion of such
individual, he or she has made such examination or
investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of such
individual, such condition or covenant has been complied with.
SECTION 1.3. Forms of Documents Delivered to Trustee.
(a) In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person,
it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be
so certified or covered by only one document, but one such
Person may certify or give an opinion with respect to some
matters and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to such
matters in one or several documents.
(b) Any certificate or opinion of an officer of the Company
may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel,
unless such officer knows, or after reasonable inquiry should
know, that the certificate or opinion or representations with
respect to matters upon which his or her certificate or opinion
is based are erroneous. Any such certificate or Opinion of
Counsel may be based, insofar as it relates to
10
factual matters, upon a certificate or opinion of, or representations
by, an officer or officers of the Company stating that the information
with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or after reasonable inquiry
should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
(c) Where any Person is required to make, give or execute two
or more applications, requests, consents, certificates,
statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.
(d) Whenever, subsequent to the receipt by the Trustee of any
Board Resolution, Officers' Certificate, Opinion of Counsel or
other document or instrument, a clerical, typographical or other
inadvertent or unintentional error or omission shall be
discovered therein, a new document or instrument may be
substituted therefor in corrected form with the same force and
effect as if originally received in the corrected form and,
irrespective of the date or dates of the actual execution and/or
delivery thereof, such substitute document or instrument shall
be deemed to have been executed and/or delivered as of the date
or dates required with respect to the document or instrument for
which it is substituted. Without limiting the generality of the
foregoing, any Securities issued under the authority of such
defective document or instrument shall nevertheless be the valid
obligations of the Company entitled to the benefits of this
Indenture equally and ratably with all other Outstanding
Securities.
SECTION 1.4. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be
given to or taken by Holders may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by
such Holders in person or by an agent thereof duly appointed in
writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or
instruments (including any appointment of an agent) is or are
delivered to the Trustee, and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such
instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and conclusive in
favor of the Trustee and the Company, if made in the manner
provided in this Section 1.4.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a
witness of such execution or by the certificate of any notary
public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him or her the
execution thereof. Where such execution is by a Person acting in
other than his or her individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his or her
authority. The fact and date of the execution by any Person of
any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner that
the Trustee deems sufficient and in accordance with such
reasonable rules as the Trustee may determine.
(c) The ownership of Securities shall be proved by the
Securities Register.
11
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Security
shall bind every future Holder of the same Security and the
Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done or suffered to be done by the Trustee
or the Company in reliance thereon, whether or not notation of
such action is made upon such Security.
(e) Without limiting the foregoing, a Holder entitled to take
any action hereunder with regard to any particular Security may
do so with regard to all or any part of the principal amount of
such Security or by one or more duly appointed agents each of
which may do so pursuant to such appointment with regard to all
or any part of such principal amount.
(f) Except as set forth in paragraph (g) of this Section 1.4,
the Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to
give, make or take any request, demand, authorization,
direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be given, made or taken by
Holders of Securities. If any record date is set pursuant to
this paragraph, the Holders of Outstanding Securities on such
record date, and no other Holders, shall be entitled to take the
relevant action, whether or not such Holders remain Holders
after such record date; provided, that no such action shall be
effective hereunder unless taken on or prior to the applicable
Expiration Date (as defined below) by Holders of the requisite
principal amount of Outstanding Securities on such record date.
Nothing in this paragraph shall be construed to prevent the
Company from setting a new record date for any action for which
a record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically
and with no action by any Person be canceled and of no effect).
Promptly after any record date is set pursuant to this
paragraph, the Company, at its own expense, shall cause notice
of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Trustee in writing
and to each Holder of Securities in the manner set forth in
Section 1.6.
(g) The Trustee may set any day as a record date for the
purpose of determining the Holders of Outstanding Securities
entitled to join in the giving or making of (i) any Notice of
Default, (ii) any declaration of acceleration or rescission or
annulment thereof referred to in Section 5.2, (iii) any request
to institute proceedings referred to in Section 5.7(b) or (iv)
any direction referred to in Section 5.12. If any record date is
set pursuant to this paragraph, the Holders of Outstanding
Securities on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or
direction, whether or not such Holders remain Holders after such
record date; provided, that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration
Date by Holders of the requisite principal amount of Outstanding
Securities on such record date. Nothing in this paragraph shall
be construed to prevent the Trustee from setting a new record
date for any action for which a record date has previously been
set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any
Person be canceled and of no effect). Promptly after any record
date is set pursuant to this paragraph, the Trustee, at the
Company's expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to
be given to the Company in writing and to each Holder of
Securities in the manner set forth in Section 1.6.
(h) With respect to any record date set pursuant to paragraph
(f) or (g) of this Section 1.4, the party hereto that sets such
record date may designate any day as the "Expiration Date"
12
and from time to time may change the Expiration Date to any earlier
or later day; provided, that no such change shall be effective
unless notice of the proposed new Expiration Date is given to
the other party hereto in writing, and to each Holder of
Securities in the manner set forth in Section 1.6, on or prior
to the existing Expiration Date. If an Expiration Date is not
designated with respect to any record date set pursuant to this
Section 1.4, the party hereto that set such record date shall be
deemed to have initially designated the ninetieth (90th) day
after such record date as the Expiration Date with respect
thereto, subject to its right to change the Expiration Date as
provided in this paragraph. Notwithstanding the foregoing, no
Expiration Date shall be later than the one hundred and
eightieth (180th) day after the applicable record date.
SECTION 1.5. Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver, Act of Holders, or other document provided or
permitted by this Indenture to be made upon, given or furnished
to, or filed with:
(a) the Trustee by any Holder, any holder of Preferred
Securities or the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, or
(b) the Company by the Trustee, any Holder or any holder of
Preferred Securities shall be sufficient for every purpose
hereunder if in writing and mailed, first class, postage
prepaid, to the Company addressed to it at One Bank Plaza,
Wheeling, WV 26003 or at any other address previously furnished
in writing to the Trustee by the Company.
SECTION 1.6. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if in writing and mailed, first
class, postage prepaid, to each Holder affected by such event to
the address of such Holder as it appears in the Securities
Register, not later than the latest date, and not earlier than
the earliest date, prescribed for the giving of such notice. If,
by reason of the suspension of or irregularities in regular mail
service or for any other reason, it shall be impossible or
impracticable to mail notice of any event to Holders when said
notice is required to be given pursuant to any provision of this
Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient
giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other
Holders. Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice
by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 1.7. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the
construction of this Indenture.
13
SECTION 1.8. Successors and Assigns.
This Indenture shall be binding upon and shall inure to the
benefit of any successor to the Company and the Trustee,
including any successor by operation of law. Except in
connection with a transaction involving the Company that is
permitted under Article VIII and pursuant to which the assignee
agrees in writing to perform the Company's obligations
hereunder, the Company shall not assign its obligations
hereunder.
SECTION 1.9. Separability Clause.
If any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby, and there shall
be deemed substituted for the provision at issue a valid, legal
and enforceable provision as similar as possible to the
provision at issue.
SECTION 1.10. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto
and their successors and assigns, the holders of Senior Debt,
the Holders of the Securities and, to the extent expressly
provided in Sections 5.2, 5.8, 5.9, 5.11, 5.13, 9.2 and 10.7,
the holders of Preferred Securities, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 1.11. Governing Law.
This Indenture and the rights and obligations of each of
the Holders, the Company and the Trustee shall be construed and
enforced in accordance with and governed by the laws of the
State of New York without reference to its conflict of laws
provisions (other than Section 5-1401 of the General Obligations
Law).
SECTION 1.12. Submission to Jurisdiction.
ANY LEGAL ACTION OR PROCEEDING BY OR AGAINST ANY PARTY
HERETO OR WITH RESPECT TO OR ARISING OUT OF THIS INDENTURE MAY
BE BROUGHT IN OR REMOVED TO THE COURTS OF THE STATE OF NEW YORK,
IN AND FOR THE COUNTY OF NEW YORK, OR OF THE UNITED STATES OF
AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK (IN EACH CASE
SITTING IN THE BOROUGH OF MANHATTAN). BY EXECUTION AND DELIVERY
OF THIS INDENTURE, EACH PARTY ACCEPTS, FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION
OF THE AFORESAID COURTS (AND COURTS OF APPEALS THEREFROM) FOR
LEGAL PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS
INDENTURE.
SECTION 1.13. Non-Business Days.
If any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or the
Securities) payment of interest, premium or principal or other
amounts in respect of such Security shall not be made on such
date, but shall be made on the next succeeding Business Day
14
(and no interest shall accrue in respect of the amounts whose payment
is so delayed for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case
may be, until such next succeeding Business Day) except that, if
such Business Day falls in the next succeeding calendar year,
such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on
the Interest Payment Date or Redemption Date or at the Stated
Maturity.
ARTICLE II
SECURITY FORMS
SECTION 2.1. Form of Security.
Any Security issued hereunder shall be in substantially the
following form:
WESBANCO, INC.
Floating Rate Junior Subordinated Note due 2033
No. _____________ $13,410,000
WesBanco, Inc., a corporation organized and existing under
the laws of West Virginia (hereinafter called the "Company,"
which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to
pay to [_______________], or registered assigns, the principal
sum of Thirteen Million Four Hundred and Ten Thousand Dollars
($13,410,000) or such other principal amount represented hereby
as may be set forth in the records of the Securities Registrar
hereinafter referred to in accordance with the Indenture on June
30, 2033. The Company further promises to pay interest on said
principal sum from June 19, 2003, or from the most recent
Interest Payment Date to which interest has been paid or duly
provided for, quarterly (subject to deferral as set forth
herein) in arrears on March 30, June 30, September 30 and
December 30 of each year, commencing September 30, 2003, or if
any such day is not a Business Day, on the next succeeding
Business Day (and no interest shall accrue in respect of the
amounts whose payment is so delayed for the period from and
after such Interest Payment Date until such next succeeding
Business Day), except that, if such Business Day falls in the
next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case, with the same
force and effect as if made on the Interest Payment Date, at the
fixed rate equal to 5.80% per annum through the Interest Payment
Date in June 2008; and a variable rate, reset quarterly, equal
to LIBOR plus 3.15% per annum thereafter, together with
Additional Tax Sums, if any, as provided in Section 10.5 of the
Indenture, until the principal hereof is paid or duly provided
for or made available for payment; provided, further, that any
overdue principal, premium or Additional Tax Sums and any
overdue installment of interest shall bear Additional Interest
at the fixed rate equal to 5.80% per annum through the Interest
Payment Date in June 2008; and a variable rate, reset quarterly,
equal to LIBOR plus 3.15% per annum thereafter, compounded
quarterly, from the dates such amounts are due until they are
paid or made available for payment, and such interest shall be
payable on demand.
The amount of interest payable shall be computed on the
basis of a 360-day year and the actual number of days elapsed in
the relevant interest period. The amount of interest payable for
15
any full interest period shall be computed by dividing the
applicable rate per annum by four. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment
Date shall, as provided in the Indenture, be paid to the Person
in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the
Regular Record Date for such interest installment. Any such
interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities
not less than ten (10) days prior to such Special Record Date,
or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which the Securities may be listed, and upon such notice as may
be required by such exchange, all as more fully provided in the
Indenture.
So long as no Event of Default has occurred and is
continuing, the Company shall have the right, at any time and
from time to time during the term of this Security, to defer the
payment of interest on this Security for a period of up to
twenty (20) consecutive quarterly interest payment periods (each
such period, an "Extension Period"), during which Extension
Period(s), no interest shall be due and payable (except any
Additional Tax Sums that may be due and payable). No Extension
Period shall end on a date other than an Interest Payment Date,
and no Extension Period shall extend beyond the Stated Maturity
of the principal of this Security. No interest shall be due and
payable during an Extension Period (except any Additional Tax
Sums that may be due and payable), except at the end thereof,
but each installment of interest that would otherwise have been
due and payable during such Extension Period shall bear
Additional Interest (to the extent payment of such interest
would be legally enforceable) at the fixed rate equal to 5.80%
per annum through the Interest Payment Date in June 2008; and a
variable rate, reset quarterly, equal to LIBOR plus 3.15% per
annum thereafter, compounded quarterly, from the dates on which
amounts would have otherwise been due and payable until paid or
made available for payment. At the end of any such Extension
Period, the Company shall pay all interest then accrued and
unpaid on this Security, together with such Additional Interest.
Prior to the termination of any such Extension Period, the
Company may further defer the payment of interest; provided,
that (i) all such previous and further extensions comprising
such Extension Period do not exceed twenty (20) quarterly
interest payment periods, (ii) no Extension Period shall end on
a date other than an Interest Payment Date and (iii) no
Extension Period shall extend beyond the Stated Maturity of the
principal of this Security. Upon the termination of any such
Extension Period and upon the payment of all accrued and unpaid
interest and any Additional Interest then due on any Interest
Payment Date, the Company may elect to begin a new Extension
Period; provided, that (i) such Extension Period does not exceed
twenty (20) quarterly interest payment periods, (ii) no
Extension Period shall end on a date other than an Interest
Payment Date and (iii) no Extension Period shall extend beyond
the Stated Maturity of the principal of this Security. The
Company shall give the Holder of this Security and the Trustee
written notice of its election to begin any such Extension
Period at least one Business Day prior to the next succeeding
Interest Payment Date on which interest on this Security would
be payable but for such deferral or, so long as this Security is
held by the Trust, at least one Business Day prior to the
earlier of (i) the next succeeding date on which Distributions
on the Preferred Securities of WesBanco Capital Trust II would
be payable but for such deferral and (ii) the date on which the
Property Trustee of such Trust is required to give notice to any
securities
16
exchange or other applicable self-regulatory
organization or to holders of such Preferred Securities of the
record date for the payment of such Distributions.
During any such Extension Period, the Company shall not (i)
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 (ii) make any payment of
principal of or any interest or premium 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 this
Security (other than (a) repurchases, redemptions or other
acquisitions of shares of capital stock of the Company in
connection with (1) any employment contract, benefit plan or
other similar arrangement with or for the benefit of any one or
more employees, officers, directors or consultants, (2) a
dividend reinvestment or stockholder stock purchase plan or (3)
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 applicable Extension Period, (b) as a result of an
exchange 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 Rights
Plan, the issuance of rights, stock or other property under any
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).
Payment of principal of, premium, if any, and interest on
this Security shall be made in such coin or currency of the
United States of America as at the time of payment is legal
tender for payment of public and private debts. Payments of
principal, premium, if any, and interest due at the Maturity of
this Security shall be made at the Place of Payment upon
surrender of such Securities to the Paying Agent, and payments
of interest shall be made, subject to such surrender where
applicable, by wire transfer at such place and to such account
at a banking institution in the United States as may be
designated in writing to the Paying Agent at least ten (10)
Business Days prior to the date for payment by the Person
entitled thereto unless proper written transfer instructions
have not been received by the relevant record date, in which
case such payments shall be made by check mailed to the address
of such Person as such address shall appear in the Security
Register. Notwithstanding the foregoing, so long as the holder
of this Security is the Property Trustee, the payment of the
principal of (and premium, if any) and interest (including any
overdue installment of interest and Additional Tax Sums, if any)
on this Security will be made at such place and to such account
as may be designated by the Property Trustee.
The indebtedness evidenced by this Security is, to the
extent provided in the Indenture, subordinate and junior in
right of payment to the prior payment in full of all Senior
Debt, and this Security is issued subject to the provisions of
the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee
on his or her behalf to take such actions as may be necessary or
appropriate to effectuate the subordination so provided and (c)
appoints the Trustee his or her attorney-in-fact for any and all
such purposes. Each Holder hereof, by his or her acceptance
17
hereof, waives all notice of the acceptance of the subordination
provisions contained herein and in the Indenture by each holder
of Senior Debt, whether now outstanding or hereafter incurred,
and waives reliance by each such holder upon said provisions.
Unless the certificate of authentication hereon has been
executed by the Trustee by manual signature, this Security shall
not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
[FORM OF REVERSE OF SECURITY]
This Security is one of a duly authorized issue of
securities of the Company (the "Securities") issued under the
Junior Subordinated Indenture, dated as of June 19, 2003 (the
"Indenture"), between the Company and The Bank of New York, as
Trustee (in such capacity, the "Trustee," which term includes
any successor trustee under the Indenture), to which Indenture
and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee,
the holders of Senior Debt and the Holders of the Securities,
and of the terms upon which the Securities are, and are to be,
authenticated and delivered.
All terms used in this Security that are defined in the
Indenture or in the Amended and Restated Trust Agreement, dated
as of June 19, 2003 (as modified, amended or supplemented from
time to time, the "Trust Agreement"), relating to the WesBanco
Capital Trust II (the "Trust") among the Company, as Depositor,
the Trustees named therein and the Holders from time to time of
the Trust Securities issued pursuant thereto, shall have the
meanings assigned to them in the Indenture or the Trust
Agreement, as the case may be.
The Company may, on any Interest Payment Date, at its
option, upon not less than thirty (30) days' nor more than sixty
(60) days' written notice to the Holders of the Securities
(unless a shorter notice period shall be satisfactory to the
Trustee) on or after June 15, 2008 and subject to the terms and
conditions of Article XI of the Indenture, redeem this Security
in whole at any time or in part from time to time at a
Redemption Price equal to one hundred percent (100%) of the
principal amount hereof, together, in the case of any such
redemption, with accrued interest, including any Additional
Interest, to but excluding the date fixed for redemption;
provided, that the Company shall have received the prior
approval of the Federal Reserve Board if then required.
In addition, upon the occurrence and during the
continuation of a Special Event, the Company may, at its option,
upon not less than thirty (30) days' nor more than sixty (60)
days' written notice to the Holders of the Securities (unless a
shorter notice period shall be satisfactory to the Trustee),
redeem this Security, in whole but not in part, subject to the
terms and conditions of Article XI of the Indenture at a
Redemption Price equal to one hundred percent (100%) of the
principal amount hereof, together, in the case of any such
redemption, with accrued interest, including any Additional
Interest, to but excluding the date fixed for redemption;
provided, that the Company shall have received the prior
approval of the Federal Reserve Board if then required.
In the event of redemption of this Security in part only, a
new Security or Securities for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the
18
cancellation hereof. If less than all the Securities are to be
redeemed, the particular Securities to be redeemed shall be
selected not more than sixty (60) days prior to the Redemption
Date by the Trustee from the Outstanding Securities not
previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the
selection for redemption of a portion of the principal amount of
any Security.
The Indenture permits, with certain exceptions as therein
provided, the Company and the Trustee at any time to enter into
a supplemental indenture or indentures for the purpose of
modifying in any manner the rights and obligations of the
Company and of the Holders of the Securities, with the consent
of the Holders of not less than a majority in principal amount
of the Outstanding Securities. The Indenture also contains
provisions permitting Holders of specified percentages in
principal amount of the Securities, on behalf of the Holders of
all Securities, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by
the Holder of this Security shall be conclusive and binding upon
such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof, whether or not notation
of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of
this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and any premium and interest, including
any Additional Interest, on this Security at the times, place
and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is
registrable in the Securities Register, upon surrender of this
Security for registration of transfer at the office or agency of
the Company maintained for such purpose, duly endorsed by, or
accompanied by a written instrument of transfer in form
satisfactory to the Company and the Securities Registrar and
duly executed by, the Holder hereof or such Holder's attorney
duly authorized in writing, and thereupon one or more new
Securities, of like tenor, of authorized denominations and for
the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities are issuable only in registered form without
coupons in minimum denominations of $100,000 and any integral
multiple of $1,000 in excess thereof. As provided in the
Indenture and subject to certain limitations therein set forth,
Securities are exchangeable for a like aggregate principal
amount of Securities and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration
of transfer or exchange, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
The Company, the Trustee and any agent of the Company or
the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes, whether or not
this Security be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.
19
The Company and, by its acceptance of this Security or a
beneficial interest therein, the Holder of, and any Person that
acquires a beneficial interest in, this Security agree that, for
United States federal, state and local tax purposes, it is
intended that this Security constitute indebtedness.
This Security shall be construed and enforced in accordance
with and governed by the laws of the State of New York, without
reference to its conflict of laws provisions (other than Section
5-1401 of the General Obligations Law).
IN WITNESS WHEREOF, the Company has caused this instrument
to be duly executed.
WESBANCO, INC.
By:
-----------------------------
Name:
Title:
SECTION 2.2. Restricted Legend.
(a) Any Security issued hereunder shall bear a legend in
substantially the following form:
"THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF
THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN
THE NAME OF THE DEPOSITORY TRUST COMPANY ("DTC") OR A
NOMINEE OF DTC. THIS SECURITY IS EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN
DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE
BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR
ANOTHER NOMINEE OF DTC) MAY BE REGISTERED EXCEPT IN LIMITED
CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND SUCH SECURITIES, AND ANY INTEREST
THEREIN, MAY NOT BE OFFERED,
20
SOLD OR OTHERWISE TRANSFERRED
IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF ANY SECURITIES IS
HEREBY NOTIFIED THAT THE SELLER OF THE SECURITIES MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5
OF THE SECURITIES ACT PROVIDED BY RULE 144A UNDER THE
SECURITIES ACT.
THE HOLDER OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE AGREES FOR THE BENEFIT OF THE COMPANY THAT (A)
SUCH SECURITIES MAY BE OFFERED, RESOLD OR OTHERWISE
TRANSFERRED ONLY (I) TO THE COMPANY, (II) TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144A, (III) TO AN INSTITUTIONAL "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, (IV) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR (V) PURSUANT TO AN
EXEMPTION FROM THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION
AND, IN THE CASE OF (III) OR (V), SUBJECT TO THE RIGHT OF
THE COMPANY TO REQUIRE AN OPINION OF COUNSEL AND OTHER
INFORMATION SATISFACTORY TO IT AND (B) THE HOLDER WILL
NOTIFY ANY PURCHASER OF ANY SECURITIES FROM IT OF THE
RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
THE SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED ONLY
IN BLOCKS HAVING AN AGGREGATE PRINCIPAL AMOUNT OF NOT LESS
THAN $100,000. ANY ATTEMPTED TRANSFER OF SECURITIES, OR ANY
INTEREST THEREIN, IN A BLOCK HAVING AN AGGREGATE PRINCIPAL
AMOUNT OF LESS THAN $100,000 AND MULTIPLES OF $1,000 IN
EXCESS THEREOF 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 SUCH SECURITIES FOR ANY
PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
PRINCIPAL OF OR INTEREST ON SUCH SECURITIES, OR ANY
INTEREST THEREIN, AND SUCH PURPORTED TRANSFEREE SHALL BE
DEEMED TO HAVE NO INTEREST WHATSOEVER IN SUCH SECURITIES.
THE HOLDER OF THIS SECURITY, OR ANY INTEREST THEREIN, BY
ITS ACCEPTANCE HEREOF OR THEREOF ALSO AGREES, REPRESENTS
AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL
RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT TO
21
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. ANY
PURCHASER OR HOLDER OF THE SECURITIES OR ANY INTEREST
THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE
AND HOLDING THEREOF THAT 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.
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")."
(b) The above legends shall not be removed from any Security
unless there is delivered to the Company satisfactory evidence,
which may include an opinion of counsel, as may be reasonably
required to ensure that any future transfers thereof may be made
without restriction under or violation of the provisions of the
Securities Act and other applicable law. Upon provision of such
satisfactory evidence, the Company shall execute and deliver to
the Trustee, and the Trustee shall deliver, at the written
direction of the Company, a Security that does not bear the
legend.
SECTION 2.3. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in
substantially the following form:
This is one of the Securities designated therein referred
to in the within-mentioned Indenture.
Dated:
THE BANK OF NEW YORK, as Trustee
By:
-------------------------------
Authorized officer
SECTION 2.4. Temporary Securities.
(a) Pending the preparation of definitive Securities, the
Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities that are printed,
lithographed, typewritten, mimeographed or otherwise produced,
in any denomination,
22
substantially of the tenor of the definitive Securities in
lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations
as the officers executing such Securities may determine,
as evidenced by their execution of such Securities.
(b) If temporary Securities are issued, the Company will
cause definitive Securities to be prepared without unreasonable
delay. After the preparation of definitive Securities, the
temporary Securities shall be exchangeable for definitive
Securities upon surrender of the temporary Securities at the
office or agency of the Company designated for that purpose
without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities, the Company shall execute
and the Trustee shall authenticate and deliver in exchange
therefor one or more definitive Securities of any authorized
denominations having the same Original Issue Date and Stated
Maturity and having the same terms as such temporary Securities.
Until so exchanged, the temporary Securities shall in all
respects be entitled to the same benefits under this Indenture
as definitive Securities.
SECTION 2.5. Definitive Securities.
The Securities issued on the Original Issue Date shall be
in definitive form. The definitive Securities shall be printed,
lithographed or engraved, or produced by any combination of
these methods, if required by any securities exchange on which
the Securities may be listed, on a steel engraved border or
steel engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange on which the
Securities may be listed, all as determined by the officers
executing such Securities, as evidenced by their execution of
such Securities.
ARTICLE III
The Securities
SECTION 3.1. Payment of Principal and Interest.
(a) The unpaid principal amount of the Securities shall bear
interest at the fixed rate equal to 5.80% per annum through the
Interest Payment Date in June 2008; and a variable rate, reset
quarterly, equal to LIBOR plus 3.15% per annum thereafter, such
interest to accrue from the Original Issue Date or from the most
recent Interest Payment Date to which interest has been paid or
duly provided for, and any overdue principal, premium or
Additional Tax Sums and any overdue installment of interest
shall bear Additional Interest at the fixed rate equal to 5.80%
per annum through the Interest Payment Date in June 2008; and a
variable rate, reset quarterly, equal to LIBOR plus 3.15% per
annum thereafter from the dates such amounts are due until they
are paid or funds for the payment thereof are made available for
payment.
(b) Interest and Additional Interest on any Security that is
payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name
that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date
for such interest, except that interest and any Additional
Interest payable on the Stated Maturity (or any date of
principal repayment upon early maturity) of the principal of a
Security or on a Redemption Date shall be paid to the Person to
whom principal is paid. The
23
initial payment of interest on any Security that is issued
between a Regular Record Date and the related Interest Payment
Date shall be payable as provided in such Security.
(c) Any interest on any Security that is due and payable, but
is not timely paid or duly provided for, on any Interest Payment
Date for Securities (herein called "Defaulted Interest") shall
forthwith cease to be payable to the registered Holder on the
relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company,
at its election in each case, as provided in paragraph (i) or
(ii) below:
(i) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the
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 (a "Special
Record Date"), which shall be fixed in the following
manner. At least thirty (30) days prior to the date of the
proposed payment, the Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be
paid on each 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 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.
Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest, which shall be not
more than fifteen (15) days and not less than ten (10) days
prior to the date of the proposed payment and not less than
ten (10) 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 Holder of a Security at the
address of such Holder as it appears in the Securities
Register not less than ten (10) days prior to such Special
Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered on such
Special Record Date; or
(ii) The Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the
Securities may be listed and, upon such notice as may be
required by such exchange (or by the Trustee if the
Securities are not listed), if, after notice given by the
Company to the Trustee of the proposed payment pursuant to
this clause, such payment shall be deemed practicable by
the Trustee.
(d) Payments of interest on the Securities shall include
interest accrued to but excluding the respective Interest
Payment Dates. Interest payments for the Securities shall be
computed and paid on the basis of a 360-day year and the actual
number of days elapsed in the relevant interest period.
(e) Payment of principal of, premium, if any, and interest on
the Securities shall be made in such coin or currency of the
United States of America as at the time of payment is legal
tender
24
for payment of public and private debts. Payments of
principal, premium, if any, and interest due at the Maturity of
such Securities shall be made at the Place of Payment upon
surrender of such Securities to the Paying Agent and payments of
interest shall be made subject to such surrender where
applicable, by wire transfer at such place and to such account
at a banking institution in the United States as may be
designated in writing to the Paying Agent at least ten (10)
Business Days prior to the date for payment by the Person
entitled thereto unless proper written transfer instructions
have not been received by the relevant record date, in which
case such payments shall be made by check mailed to the address
of such Person as such address shall appear in the Security
Register. Notwithstanding the foregoing, so long as the holder
of this Security is the Property Trustee, the payment of the
principal of (and premium if any) and interest (including any
overdue installment of interest and Additional Tax Sums, if any)
on this Security will be made at such place and to such account
as may be designated by the Property Trustee.
(f) Subject to the foregoing provisions of this Section 3.1,
each Security delivered under this Indenture upon transfer of or
in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, that were
carried by such other Security.
SECTION 3.2. Denominations.
The Securities shall be in registered form without coupons
and shall be issuable in minimum denominations of $100,000 and
any integral multiple of $1,000 in excess thereof.
SECTION 3.3. Execution, Authentication, Delivery and Dating.
(a) At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities
in an aggregate principal amount (including all then Outstanding
Securities) not in excess of Thirteen Million Four Hundred and
Ten Thousand Dollars ($13,410,000) executed by the Company to
the Trustee for authentication, together with a Company Order
for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate
and deliver such Securities. In authenticating such Securities,
and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and shall be fully protected in relying
upon:
(i) a copy of any Board Resolution relating thereto; and
(ii) an Opinion of Counsel stating that such Securities,
when authenticated and delivered by the Trustee and issued
by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company, subject to
bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights
and to general equity principles.
(b) The Securities shall be executed on behalf of the Company
by its Chairman of the Board, its Vice Chairman of the Board,
its Chief Executive Officer, its President or one of its Vice
Presidents, under its corporate seal reproduced or impressed
thereon and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile. Securities bearing the
manual or facsimile signatures of
25
individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices
prior to the authentication and delivery of such Securities
or did not hold such offices at the date of such Securities.
(c) No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose, unless
there appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the
Trustee by the manual signature of one of its authorized
officers, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Security to
the Trustee for cancellation as provided in Section 3.8, for all
purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
(d) Each Security shall be dated the date of its
authentication.
SECTION 3.4. Global Securities.
(a) Upon the election of the Holder after the Original Issue
Date, which election need not be in writing, the Securities
owned by such Holder shall be issued in the form of one or more
Global Securities registered in the name of the Depositary or
its nominee. Each Global Security issued under this Indenture
shall be registered in the name of the Depositary designated by
the Company for such Global Security or a nominee thereof and
delivered to such Depositary or a nominee thereof or custodian
therefor, and each such Global Security shall constitute a
single Security for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for
Securities registered, and no transfer of a Global Security in
whole or in part may be registered, in the name of any Person
other than the Depositary for such Global Security or a nominee
thereof unless (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 Security, 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
Security of the occurrence of such event and of the availability
of Securities to such owners of beneficial interests requesting
the same. Upon the issuance of such Securities and the
registration in the Securities Register of such Securities in
the names of the Holders of the beneficial interests therein,
the Trustees shall recognize such holders of beneficial
interests as Holders.
26
(c) If any Global Security is to be exchanged for other
Securities or canceled in part, or if another Security is to be
exchanged in whole or in part for a beneficial interest in any
Global Security, then either (i) such Global Security shall be
so surrendered for exchange or cancellation as provided in this
Article III 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 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 Securities 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
Security by the Depositary, accompanied by registration
instructions, the Company shall execute and the Trustee shall
authenticate and deliver any Securities issuable in exchange for
such Global Security (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 Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a
Global Security or any portion thereof shall be authenticated
and delivered in the form of, and shall be, a Global Security,
unless such Security is registered in the name of a Person other
than the Depositary for such Global Security or a nominee
thereof.
(e) Securities distributed to holders of Book-Entry Preferred
Securities (as defined in the applicable Trust Agreement) upon
the dissolution of the Trust shall be distributed in the form of
one or more Global Securities registered in the name of a
Depositary or its nominee, and deposited with the Securities
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 Securities represented
thereby (or such other accounts as they may direct). Securities
distributed to holders of Preferred Securities other than Book-
Entry Preferred Securities upon the dissolution of the Trust
shall not be issued in the form of a Global Security or any
other form intended to facilitate book-entry trading in
beneficial interests in such Securities.
(f) The Depositary or its nominee, as the registered owner of
a Global Security, shall be the Holder of such Global Security
for all purposes under this Indenture and the Securities, and
owners of beneficial interests in a Global Security shall hold
such interests pursuant to the Applicable Depository Procedures.
Accordingly, any such owner's beneficial interest in a Global
Security shall be shown only on, and the transfer of such
interest shall be effected only through, records maintained by
the Depositary or its nominee or its Depositary Participants.
The Securities Registrar and the Trustee shall be entitled to
deal with the Depositary for all purposes of this Indenture
relating to a Global Security (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 Security and shall
have no obligations to the owners of beneficial interests
therein. Neither the Trustee nor the Securities Registrar shall
have any liability in respect of any transfers effected by the
Depositary.
(g) The rights of owners of beneficial interests in a Global
Security shall be exercised only through the Depositary and
shall be limited to those established by law and agreements
between such owners and the Depositary and/or its Depositary
Participants.
27
(h) No holder of any beneficial interest in any Global
Security held on its behalf by a Depositary shall have any
rights under this Indenture with respect to such Global
Security, and such Depositary may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the owner
of such Global Security for all purposes whatsoever. None of
the Company, the Trustee nor any agent of the Company or the
Trustee will have any responsibility or liability for any aspect
of the records relating to or payments made on account of
beneficial ownership interests of a Global Security or
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 Security.
SECTION 3.5. Registration, Transfer and Exchange Generally.
(a) The Trustee shall cause to be kept at the Corporate Trust
Office a register (the "Securities Register") in which the
registrar and transfer agent with respect to the Securities (the
"Securities Registrar"), subject to such reasonable regulations
as it may prescribe, shall provide for the registration of
Securities and of transfers and exchanges of Securities. The
Trustee shall at all times also be the Securities Registrar.
The provisions of Article VI shall apply to the Trustee in its
role as Securities Registrar.
(b) Upon surrender for registration of transfer of any
Security at the offices or agencies of the Company designated
for that purpose the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Securities of any
authorized denominations of like tenor and aggregate principal
amount.
(c) At the option of the Holder, Securities may be exchanged
for other Securities of any authorized denominations, of like
tenor and aggregate principal amount, upon surrender of the
Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver,
the Securities that the Holder making the exchange is entitled
to receive.
(d) All Securities issued upon any transfer or exchange of
Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits
under this Indenture, as the Securities surrendered upon such
transfer or exchange.
(e) Every Security presented or surrendered for transfer or
exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Securities
Registrar, duly executed by the Holder thereof or such Holder's
attorney duly authorized in writing.
(f) No service charge shall be made to a Holder for any
transfer or exchange of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
transfer or exchange of Securities.
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(g) Neither the Company nor the Trustee shall be required
pursuant to the provisions of this Section 3.5 (g) to issue,
register the transfer of or exchange any Security during a
period beginning at the opening of business fifteen (15) days
before the day of selection for redemption of Securities
pursuant to Article XI and ending at the close of business on
the day of mailing of the notice of redemption or (ii) to
register the transfer of or exchange any Security so selected
for redemption in whole or in part, except, in the case of any
such Security to be redeemed in part, any portion thereof not to
be redeemed.
(h) The Company shall designate an office or offices or
agency or agencies where Securities may be surrendered for
registration or transfer or exchange. The Company initially
designates the Corporate Trust Office as its office and agency
for such purposes. The Company shall give prompt written notice
to the Trustee and to the Holders of any change in the location
of any such office or agency.
SECTION 3.6. Mutilated, Destroyed, Lost and Stolen Securities.
(a) If any mutilated Security is surrendered to the Trustee
together with such security or indemnity as may be required by
the Company or the Trustee to save each of them harmless, the
Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of like tenor and
aggregate principal amount and bearing a number not
contemporaneously outstanding.
(b) If there shall be delivered to the Company and to the
Trustee (i) evidence to their satisfaction of the destruction,
loss or theft of any Security and (ii) such security or
indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Company or the
Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its written
request the Trustee shall authenticate and deliver, in lieu of
any such destroyed, lost or stolen Security, a new Security of
like tenor and aggregate principal amount as such destroyed,
lost or stolen Security, and bearing a number not
contemporaneously outstanding.
(c) If any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in
its discretion may, instead of issuing a new Security, pay such
Security.
(d) Upon the issuance of any new Security under this Section
3.6, the Company may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees
and expenses of the Trustee) connected therewith.
(e) Every new Security issued pursuant to this Section 3.6 in
lieu of any mutilated, destroyed, lost or stolen Security shall
constitute an original additional contractual obligation of the
Company, whether or not the mutilated, destroyed, lost or stolen
Security shall be at any time enforceable by anyone, and shall
be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities duly issued
hereunder.
(f) The provisions of this Section 3.6 are exclusive and
shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities.
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SECTION 3.7. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or
the Trustee shall treat the Person in whose name any Security is
registered as the owner of such Security for the purpose of
receiving payment of principal of and any interest on such
Security and for all other purposes whatsoever, and neither the
Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
SECTION 3.8. Cancellation.
All Securities surrendered for payment, redemption,
transfer or exchange shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee, and any such
Securities and Securities surrendered directly to the Trustee
for any such purpose shall be promptly canceled by it. The
Company may at any time deliver to the Trustee for cancellation
any Securities previously authenticated and delivered hereunder
that the Company may have acquired in any manner whatsoever, and
all Securities so delivered shall be promptly canceled by the
Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section
3.8, except as expressly permitted by this Indenture. All
canceled Securities shall be disposed of by the Trustee in
accordance with its customary practices and the Trustee shall
deliver to the Company a certificate of such disposition.
SECTION 3.9. Deferrals of Interest Payment Dates.
(a) So long as no Event of Default has occurred and is
continuing, the Company shall have the right, at any time and
from time to time during the term of the Security, to defer the
payment of interest on the Securities for a period of up to
twenty (20) consecutive quarterly interest payment periods (each
such period, an "Extension Period"), during which Extension
Period(s), the Company shall have the right to make no payments
or partial payments of interest on any Interest Payment Date
(except any Additional Tax Sums that otherwise may be due and
payable). No Extension Period shall end on a date other than an
Interest Payment Date and no Extension Period shall extend
beyond the Stated Maturity of the principal of the Securities.
No interest shall be due and payable during an Extension Period,
except at the end thereof, but each installment of interest that
would otherwise have been due and payable during such Extension
Period shall bear Additional Interest (to the extent payment of
such interest would be legally enforceable) at the fixed rate
equal to 5.80% per annum through the Interest Payment Date in
June 2008; and a variable rate, reset quarterly, equal to LIBOR
plus 3.15% per annum thereafter, compounded quarterly, from the
dates on which amounts would have otherwise been due and payable
until paid or until funds for the payment thereof have been made
available for payment. At the end of any such Extension Period,
the Company shall pay all interest then accrued and unpaid on
the Securities together with such Additional Interest. Prior to
the termination of any such Extension Period, the Company may
extend such Extension Period and further defer the payment of
interest; provided, that (i) all such previous and further
extensions comprising such Extension Period do not exceed twenty
(20) quarterly interest payment periods, (ii) no Extension
Period shall end on a date other than an Interest Payment Date
and (iii) no Extension Period shall extend beyond the Stated
Maturity of the principal of the Securities. Upon the
termination of any such Extension Period and upon the payment of
all accrued and unpaid interest and any Additional Interest then
due on any Interest Payment Date, the Company may elect to begin
a new Extension Period; provided, that (i) such Extension Period
does not exceed twenty (20)
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quarterly interest payment periods,
(ii) no Extension Period shall end on a date other than an
Interest Payment Date and (iii) no Extension Period shall extend
beyond the Stated Maturity of the principal of the Securities.
The Company shall give the Holders of the Securities and the
Trustee written notice of its election to begin any such
Extension Period at least one Business Day prior to the next
succeeding Interest Payment Date on which interest on the
Securities would be payable but for such deferral or, so long as
any Securities are held by the Trust, at least one Business Day
prior to the earlier of (i) the next succeeding date on which
Distributions on the Preferred Securities of such Trust would be
payable but for such deferral and (ii) the date on which the
Property Trustee of such Trust is required to give notice to any
securities exchange or other applicable self-regulatory
organization or to holders of such Preferred Securities of the
record date for the payment of such Distributions.
(b) In connection with any such Extension Period, the Company
shall be subject to the restrictions set forth in Section
10.6(a).
SECTION 3.10. Right of Set-Off.
Notwithstanding anything to the contrary herein, the
Company shall have the right to set off any payment it is
otherwise required to make in respect of any Security to the
extent the Company has theretofore made, or is concurrently on
the date of such payment making, a payment under the Guarantee
Agreement relating to such Security or to a holder of Preferred
Securities pursuant to an action undertaken under Section 5.8 of
this Indenture.
SECTION 3.11. Agreed Tax Treatment.
Each Security issued hereunder shall provide that the
Company and, by its acceptance or acquisition of a Security or a
beneficial interest therein, the Holder of, and any Person that
acquires a direct or indirect beneficial interest in, such
Security, intend and agree to treat such Security as
indebtedness of the Company for United States Federal, state and
local tax purposes and to treat the Preferred Securities
(including but not limited to all payments and proceeds with
respect to the Preferred Securities) as an undivided beneficial
ownership interest in the Securities (and payments and proceeds
therefrom, respectively) for United States Federal, state and
local tax purposes. The provisions of this Indenture shall be
interpreted to further this intention and agreement of the
parties.
SECTION 3.12. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP"
numbers (if then generally in use), and, if so, the Trustee
shall use "CUSIP" numbers in notices of redemption and other
similar or related materials as a convenience to Holders;
provided, that any such notice or other materials may state that
no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any
notice of redemption or other materials and that reliance may be
placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any
defect in or omission of such numbers.
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ARTICLE IV
Satisfaction and Discharge
SECTION 4.1. Satisfaction and Discharge of Indenture.
This Indenture shall, upon Company Request, cease to be of
further effect (except as to any surviving rights of
registration of transfer or exchange of Securities herein
expressly provided for and as otherwise provided in this Section
4.1) and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) either
(i) all Securities theretofore authenticated and
delivered (other than (A) Securities that have been
mutilated, destroyed, lost or stolen and that have been
replaced or paid as provided in Section 3.6 and (B)
Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged
from such trust as provided in Section 10.2) have been
delivered to the Trustee for cancellation; or
(ii) all such Securities not theretofore delivered to
the Trustee for cancellation
(A) have become due and payable, or
(B) will become due and payable at their Stated
Maturity within one year of the date of
deposit, or
(C) are to be called for redemption within one
year under arrangements satisfactory to the
Trustee for the giving of notice of
redemption by the Trustee in the name, and
at the expense, of the Company,
and the Company, in the case of subclause (ii)(A), (B) or
(C) above, has deposited or caused to be deposited with the
Trustee as trust funds in trust for such purpose (x) an
amount in the currency or currencies in which the
Securities are payable, (y) Government Obligations which
through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will
provide, not later than the due date of any payment, money
in an amount or (z) a combination thereof, in each case
sufficient, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal and any premium and interest (including any
Additional Interest) to the date of such deposit (in the
case of Securities that have become due and payable) or to
the Stated Maturity (or any date of principal repayment
upon early maturity) or Redemption Date, as the case may be;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
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(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied
with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under
Section 6.6, the obligations of the Company to any
Authenticating Agent under Section 6.11 and, if money shall have
been deposited with the Trustee pursuant to subclause (a)(ii) of
this Section 4.1, the obligations of the Trustee under Section
4.2 and Section 10.2(e) shall survive.
SECTION 4.2. Application of Trust Money.
Subject to the provisions Section 10.2(e), all money
deposited with the Trustee pursuant to Section 4.1 shall be held
in trust and applied by the Trustee, in accordance with the
provisions of the Securities and this Indenture, to the payment
in accordance with Section 3.1, either directly or through any
Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal and any premium and interest
(including any Additional Interest) for the payment of which
such money or obligations have been deposited with or received
by the Trustee. Moneys held by the Trustee under this Section
4.2 shall not be subject to the claims of holders of Senior Debt
under Article XII.
ARTICLE V
Remedies
SECTION 5.1. Events of Default.
"Event of Default" means, wherever used herein with respect
to the Securities, any one of the following events (whatever the
reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental
body):
(a) default in the payment of any interest upon any Security,
including any Additional Interest in respect thereof, when it
becomes due and payable, and continuance of such default for a
period of thirty (30) days (subject to the deferral of any due
date in the case of an Extension Period); or
(b) default in the payment of the principal of or any premium
on any Security at its Maturity; or
(c) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture and continuance of
such default or breach for a period of thirty (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 at least twenty five percent (25%) in aggregate
principal amount of the Outstanding 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;
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(d) the entry by a court having jurisdiction in the premises
of a decree or order adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or state
bankruptcy, insolvency, reorganization or other similar law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any
substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such
decree or order for relief or any such other decree or order
unstayed and in effect for a period of sixty (60) consecutive
days; or
(e) the institution by the Company of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by the
Company to the institution of bankruptcy or insolvency
proceedings against it, or the filing by the Company of a
petition or answer or consent seeking reorganization or relief
under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law, or the consent by it to the
filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company
or of any substantial part of its property, or the making by it
of an assignment for the benefit of creditors, or the admission
by it in writing of its inability to pay its debts generally as
they become due and its willingness to be adjudicated a bankrupt
or insolvent, or the taking of corporate action by the Company
in furtherance of any such action.
(f) 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 Securities to holders of the Preferred
Securities in liquidation of their interests in the Trust,
(2) the redemption of all of the outstanding Preferred
Securities or (3) certain mergers, consolidations or
amalgamations, each as and to the extent permitted by the Trust
Agreement.
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment.
(a) If an Event of Default occurs and is continuing, then and
in every such case the Trustee or the Holders of not less than
twenty five percent (25%) in aggregate principal amount of the
Outstanding Securities may declare the principal amount of all
the Securities to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders),
provided, that if, upon an Event of Default, the Trustee or the
Holders of not less than twenty five percent (25%) in principal
amount of the Outstanding Securities fail to declare the
principal of all the Outstanding Securities to be immediately
due and payable, the holders of at least twenty five percent
(25%) in aggregate Liquidation Amount (as defined in the Trust
Agreement) of the Preferred Securities then outstanding shall
have the right to make such declaration by a notice in writing
to the Property Trustee, the Company and the Trustee; and upon
any such declaration the principal amount of and the accrued
interest (including any Additional Interest) on all the
Securities shall become immediately due and payable.
(b) At any time after such a declaration of acceleration with
respect to Securities has been made and before a judgment or
decree for payment of the money due has been obtained by the
Trustee as hereinafter provided in this Article V, the Holders
of a majority in aggregate principal amount of the Outstanding
Securities, by written
34
notice to the Indenture Trustee, or the
Holders of a majority in aggregate liquidation amount of the
Preferred Securities, by written notice to the Property Trustee,
the Company and the Trustee, may rescind and annul such
declaration and its consequences if:
(i) the Company has paid or deposited with the Trustee a
sum sufficient to pay:
(A) all overdue installments of interest on all
Securities,
(B) any accrued Additional Interest on all
Securities,
(C) the principal of and any premium on any
Securities that have become due otherwise
than by such declaration of acceleration and
interest (including any Additional Interest)
thereon at the rate borne by the Securities,
and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation,
expenses, disbursements and advances of the
Trustee, the Property Trustee and their
agents and counsel; and
(ii) all Events of Default with respect to Securities,
other than the non-payment of the principal of Securities
that has become due solely by such acceleration, have been
cured or waived as provided in Section 5.13;
provided, that if the Holders of such Securities fail to annul
such declaration and waive such default, the holders of not less
than a majority in aggregate Liquidation Amount (as defined in
the Trust Agreement) of the Preferred Securities then
outstanding shall also have the right to rescind and annul such
declaration and its consequences by written notice to the
Property Trustee, the Company and the Trustee, subject to the
satisfaction of the conditions set forth in paragraph (b) of
this Section 5.2. No such rescission shall affect any
subsequent default or impair any right consequent thereon.
SECTION 5.3. Collection of Indebtedness and Suits for
Enforcement by Trustee.
(a) The Company covenants that if:
(i) default is made in the payment of any installment of
interest (including any Additional Interest) on any
Security when such interest becomes due and payable and
such default continues for a period of thirty (30) days, or
(ii) default is made in the payment of the principal of
and any premium on any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to the
Trustee, for the benefit of the Holders of such Securities, the
whole amount then due and payable on such Securities for
principal and any premium and interest (including any Additional
Interest) and, in addition thereto, all amounts owing the
Trustee under Section 6.6.
(b) If the Company fails to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an
express trust, may institute a judicial proceeding for the
35
collection of the sums so due and unpaid, and may prosecute such
proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities
and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any
other obligor upon the Securities, wherever situated.
(c) If an Event of Default with respect to Securities occurs
and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of
Securities by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other
proper remedy.
SECTION 5.4. Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition
or similar judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its
creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and
all actions authorized hereunder in order to have claims of the
Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on
any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to first pay to the
Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts owing the Trustee, any
predecessor Trustee and other Persons under Section 6.6.
SECTION 5.5. Trustee May Enforce Claim Without Possession of
Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without
the possession of any of the Securities or the production
thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of
judgment shall, subject to Article XII and after provision for
the payment of all the amounts owing the Trustee, any
predecessor Trustee and other Persons under Section 6.6, be for
the ratable benefit of the Holders of the Securities in respect
of which such judgment has been recovered.
SECTION 5.6. Application of Money Collected.
Any money or property collected or to be applied by the
Trustee with respect to the Securities pursuant to this Article
V shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such
money or property on account of principal or any premium or
interest (including any Additional Interest), upon presentation
of the Securities and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
36
FIRST: To the payment of all amounts due the Trustee, any
predecessor Trustee and other Persons under Section 6.6;
SECOND: To the payment of all Senior Debt of the Company if
and to the extent required by Article XII.
THIRD: Subject to Article XII, to the payment of the
amounts then due and unpaid upon the Securities for principal
and any premium and interest (including any Additional Interest)
in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Securities
for principal and any premium and interest (including any
Additional Interest), respectively; and
FOURTH: The balance, if any, to the Person or Persons
entitled thereto.
SECTION 5.7. Limitation on Suits.
Subject to Section 5.8, no Holder of any Securities shall
have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture or for the appointment
of a custodian, receiver, assignee, trustee, liquidator,
sequestrator (or other similar official) or for any other remedy
hereunder, unless:
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities;
(b) the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities shall have made
written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee
hereunder;
(c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities
to be incurred in compliance with such request;
(d) the Trustee after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding
for sixty (60) days; and
(e) no direction inconsistent with such written request has
been given to the Trustee during such sixty (60)-day period by
the Holders of a majority in aggregate principal amount of the
Outstanding Securities;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue
of, or by availing itself of, any provision of this Indenture to
affect, disturb or prejudice the rights of any other Holders of
Securities, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any
right under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all such Holders.
SECTION 5.8. Unconditional Right of Holders to Receive
Principal, Premium and Interest; Direct Action by Holders of
Preferred Securities.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute
and unconditional, to receive payment of the principal of and
37
any premium on such Security at its Maturity and payment of
interest (including any Additional Interest) on such Security
when due and payable and to institute suit for the enforcement
of any such payment, and such right shall not be impaired
without the consent of such Holder. Any registered holder of the
Preferred Securities shall have the right, upon the occurrence
of an Event of Default described in Section 5.1(a) or Section
5.1(b), to institute a suit directly against the Company for
enforcement of payment to such holder of principal of and any
premium and interest (including any Additional Interest) on the
Securities having a principal amount equal to the aggregate
Liquidation Amount (as defined in the Trust Agreement) of the
Preferred Securities held by such holder.
SECTION 5.9. Restoration of Rights and Remedies.
If the Trustee, any Holder or any holder of Preferred
Securities has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined
adversely to the Trustee, such Holder or such holder of
Preferred Securities, then and in every such case the Company,
the Trustee, such Holders and such holder of Preferred
Securities shall, subject to any determination in such
proceeding, be restored severally and respectively to their
former positions hereunder, and thereafter all rights and
remedies of the Trustee, such Holder and such holder of
Preferred Securities shall continue as though no such proceeding
had been instituted.
SECTION 5.10. Rights and Remedies Cumulative.
Except as otherwise provided in Section 3.6(f), no right or
remedy herein conferred upon or reserved to the Trustee or the
Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of
any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee, any Holder of any
Securities or any holder of any Preferred Security to exercise
any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right
and remedy given by this Article V or by law to the Trustee or
to the Holders and the right and remedy given to the holders of
Preferred Securities by Section 5.8 may be exercised from time
to time, and as often as may be deemed expedient, by the
Trustee, the Holders or the holders of Preferred Securities, as
the case may be.
SECTION 5.12. Control by Holders.
The Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities shall have the
right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee; provided, that:
(a) such direction shall not be in conflict with any rule of
law or with this Indenture,
38
(b) the Trustee may take any other action deemed proper by
the Trustee that is not inconsistent with such direction, and
(c) subject to the provisions of Section 6.2, the Trustee
shall have the right to decline to follow such direction if a
Responsible Officer or Officers of the Trustee shall, in good
faith, reasonably determine that the proceeding so directed
would be unjustly prejudicial to the Holders not joining in any
such direction or would involve the Trustee in personal
liability.
SECTION 5.13. Waiver of Past Defaults.
(a) The Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities and the holders
of a majority in aggregate Liquidation Amount (as defined in the
Trust Agreement) of the Preferred Securities may waive any past
Event of Default hereunder and its consequences except an Event
of Default:
(i) in the payment of the principal of or any premium or
interest (including any Additional Interest) on any
Security (unless such Event of Default has been cured and
the Company has paid to or deposited with the Trustee a sum
sufficient to pay all installments of interest (including
any Additional Interest) due and past due and all principal
of and any premium on all Securities due otherwise than by
acceleration), or
(ii) in respect of a covenant or provision hereof that
under Article IX cannot be modified or amended without the
consent of each Holder of any Outstanding Security.
(b) Any such waiver shall be deemed to be on behalf of the
Holders of all the Securities or, in the case of a waiver by
holders of Preferred Securities issued by such Trust, by all
holders of Preferred Securities.
(c) Upon any such waiver, such Event of Default shall cease
to exist and any Event of Default arising therefrom shall be
deemed to have been cured for every purpose of this Indenture;
but no such waiver shall extend to any subsequent or other Event
of Default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by his or her acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action
taken or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section
5.14 shall not apply to any suit instituted by the Trustee, to
any suit instituted by any Holder, or group of Holders, holding
in the aggregate more than ten percent (10%) in aggregate
principal amount of the Outstanding Securities, or to any suit
instituted by any Holder for the enforcement of the payment of
the principal of or any premium on the Security after the Stated
Maturity or any interest (including any Additional Interest) on
any Security after it is due and payable.
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SECTION 5.15. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of,
any usury, stay or extension law wherever enacted, now or at any
time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law, and covenants that it will not
hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution
of every such power as though no such law had been enacted.
ARTICLE VI
The Trustee
SECTION 6.1. Corporate Trustee Required.
There shall at all times be a Trustee hereunder with
respect to the Securities. The Trustee shall be a corporation
organized and doing business under the laws of the United States
or of any state thereof, authorized to exercise corporate trust
powers, having a combined capital and surplus of at least
$50,000,000, subject to supervision or examination by Federal or
state authority and having an office within the United States.
If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of such
supervising or examining authority, then, for the purposes of
this Section 6.1, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 6.1,
it shall resign immediately in the manner and with the effect
hereinafter specified in this Article VI.
SECTION 6.2. Certain Duties and Responsibilities.
Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; provided,
that in the case of any such certificates or opinions that
by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty
to examine the same to determine whether or not they
substantially conform on their face to the requirements of
this Indenture.
(b) If an Event of Default known to the Trustee has occurred
and is continuing, the Trustee shall, prior to the receipt of
directions, if any, from the Holders of at least a majority in
aggregate principal amount of the Outstanding Securities,
exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its
exercise, as a
40
prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(c) Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably
assured to it. Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section 6.2.
To the extent that, at law or in equity, the Trustee has duties
and liabilities relating to the Holders, the Trustee shall not
be liable to any Holder for the Trustee's good faith reliance on
the provisions of this Indenture. The provisions of this
Indenture, to the extent that they restrict the duties and
liabilities of the Trustee otherwise existing at law or in
equity, are agreed by the Company and the Holders to replace
such other duties and liabilities of the Trustee.
(d) No provisions of this Indenture shall be construed to
relieve the Trustee from liability with respect to matters that
are within the authority of the Trustee under this Indenture for
its own negligent action, negligent failure to act or willful
misconduct, except that:
(i) the Trustee shall not be liable for any error or
judgment made in good faith by an authorized officer of the
Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(ii) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of at least a
majority in aggregate principal amount of the Outstanding
Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the
Trustee under this Indenture; and
(iii) the Trustee shall be under no liability for
interest on any money received by it hereunder except as
otherwise agreed with the Company and money held by the
Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law.
SECTION 6.3. Notice of Defaults.
Within ninety (90) days after the occurrence of any default
actually known to the Trustee, the Trustee shall give the
Holders notice of such default unless such default shall have
been cured or waived; provided, that except in the case of a
default in the payment of the principal of or any premium or
interest on any Securities, the Trustee shall be fully protected
in withholding the notice if and so long as the board of
directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good
faith determines that withholding the notice is in the interest
of holders of Securities; and provided, that in the case of any
default of the character specified in Section 5.1(c), no such
notice to Holders shall be given until at least thirty (30) days
after the occurrence thereof. For the purpose of this Section
6.3, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of
Default.
41
SECTION 6.4. Certain Rights of Trustee.
Subject to the provisions of Section 6.2:
(a) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting in good faith and
in accordance with the terms hereof upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note or
other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) if (i) in performing its duties under this Indenture the
Trustee is required to decide between alternative courses of
action, (ii) in construing any of the provisions of this
Indenture the Trustee finds ambiguous or inconsistent with any
other provisions contained herein or (iii) the Trustee is unsure
of the application of any provision of this Indenture, then,
except as to any matter as to which the Holders are entitled to
decide under the terms of this Indenture, the Trustee shall
deliver a notice to the Company requesting the Company's written
instruction as to the course of action to be taken and the
Trustee shall take such action, or refrain from taking such
action, as the Trustee shall be instructed in writing to take,
or to refrain from taking, by the Company; provided, that if the
Trustee does not receive such instructions from the Company
within ten Business Days after it has delivered such notice or
such reasonably shorter period of time set forth in such notice
the Trustee may, but shall be under no duty to, take such
action, or refrain from taking such action, as the Trustee shall
deem advisable and in the best interests of the Holders, in
which event the Trustee shall have no liability except for its
own negligence, bad faith or willful misconduct;
(c) any request or direction of the Company shall be
sufficiently evidenced by a Company Request or Company Order and
any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(d) the Trustee may consult with counsel (which counsel may
be counsel to the Trustee, the Company or any of its Affiliates,
and may include any of its employees) and the advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in
reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this
Indenture, unless such Holders shall have offered to the Trustee
security or indemnity reasonably satisfactory to it against the
costs, expenses (including reasonable attorneys' fees and
expenses) and liabilities that might be incurred by it in
compliance with such request or direction, including reasonable
advances as may be requested by the Trustee;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, indenture, note or other paper
or document, but the Trustee in its discretion may make such
inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such
inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by
agent or attorney;
42
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by
or through agents, attorneys, custodians or nominees and the
Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent, attorney, custodian or
nominee appointed with due care by it hereunder;
(h) whenever in the administration of this Indenture the
Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other
action with respect to enforcing any remedy or right hereunder,
the Trustees (i) may request instructions from the Holders
(which instructions may only be given by the Holders of the same
aggregate principal amount of Outstanding Securities as would be
entitled to direct the Trustee under this Indenture in respect
of such remedy, right or action), (ii) may refrain from
enforcing such remedy or right or taking such action until such
instructions are received and (iii) shall be protected in acting
in accordance with such instructions;
(i) except as otherwise expressly provided by this Indenture,
the Trustee shall not be under any obligation to take any action
that is discretionary under the provisions of this Indenture;
(j) without prejudice to any other rights available to the
Trustee under applicable law, when the Trustee incurs expenses
or renders services in connection with any bankruptcy,
insolvency or other proceeding referred to in clauses (d) or (e)
of the definition of Event of Default, such expenses (including
legal fees and expenses of its agents and counsel) and the
compensation for such services are intended to constitute
expenses of administration under any bankruptcy laws or law
relating to creditors rights generally;
(k) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, conclusively rely upon an Officers' Certificate addressing
such matter, which, upon receipt of such request, shall be
promptly delivered by the Company;
(l) the Trustee shall not be charged with knowledge of any
Event of Default unless either (i) a Responsible Officer of the
Trustee shall have actual knowledge or (ii) the Trustee shall
have received notice thereof from the Company or a Holder; and
(m) in the event that the Trustee is also acting as Paying
Agent, Authenticating Agent or Securities Registrar hereunder,
the rights and protections afforded to the Trustee pursuant to
this Article VI shall also be afforded such Paying Agent,
Authenticating Agent, or Securities Registrar.
SECTION 6.5. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent,
any Securities Registrar or any other agent of the Company, in
its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with the Company
with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Securities Registrar or such
other agent.
43
SECTION 6.6. Compensation; Reimbursement; Indemnity.
(a) The Company agrees
(i) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder in
such amounts as the Company and the Trustee shall agree
from time to time (which compensation shall not be limited
by any provision of law in regard to the compensation of a
trustee of an express trust);
(ii) to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be
attributable to its negligence, bad faith or willful
misconduct; and
(iii) to the fullest extent permitted by applicable law,
to indemnify the Trustee and its Affiliates, and their
officers, directors, shareholders, agents, representatives
and employees for, and to hold them harmless against, any
loss, damage, liability, tax (other than income, franchise
or other taxes imposed on amounts paid pursuant to (i) or
(ii) hereof), penalty, expense or claim of any kind or
nature whatsoever incurred without negligence, bad faith or
willful misconduct on its part arising out of or in
connection with the acceptance or administration of this
trust or the performance of the Trustee's duties hereunder,
including the costs and expenses of defending itself
against any claim or liability in connection with the
exercise or performance of any of its powers or duties
hereunder.
(b) To secure the Company's payment obligations in this
Section 6.6, the Trustee shall have a lien prior to the
Securities on all money or property held or collected by the
Trustee, other than money or property held in trust to pay
principal and interest on particular Securities. Such lien
shall survive the satisfaction and discharge of this Indenture
or the resignation or removal of the Trustee.
(c) The obligations of the Company under this Section 6.6
shall survive the satisfaction and discharge of this Indenture
and the earlier resignation or removal of the Trustee.
(d) In no event shall the Trustee be liable for any indirect,
special, punitive or consequential loss or damage of any kind
whatsoever, including, but not limited to, lost profits, even if
the Trustee has been advised of the likelihood of such loss or
damage and regardless of the form of action.
(e) In no event shall the Trustee be liable for any failure
or delay in the performance of its obligations hereunder because
of circumstances beyond its control, including, but not limited
to, acts of God, flood, war (whether declared or undeclared),
terrorism, fire, riot, embargo, government action, including any
laws, ordinances, regulations, governmental action or the like
which delay, restrict or prohibit the providing of the services
contemplated by this Indenture.
44
SECTION 6.7. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article VI
shall become effective until the acceptance of appointment by
the successor Trustee under Section 6.8.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company.
(c) Unless an Event of Default shall have occurred and be
continuing, the Trustee may be removed at any time by the
Company by a Board Resolution. If an Event of Default shall
have occurred and be continuing, the Trustee may be removed by
Act of the Holders of a majority in aggregate principal amount
of the Outstanding Securities, delivered to the Trustee and to
the Company.
(d) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office
of Trustee for any reason, at a time when no Event of Default
shall have occurred and be continuing, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee, and such
successor Trustee and the retiring Trustee shall comply with the
applicable requirements of Section 6.8. If the Trustee shall
resign, be removed or become incapable of acting, or if a
vacancy shall occur in the office of Trustee for any reason, at
a time when an Event of Default shall have occurred and be
continuing, the Holders, by Act of the Holders of a majority in
aggregate principal amount of the Outstanding Securities, shall
promptly appoint a successor Trustee, and such successor Trustee
and the retiring Trustee shall comply with the applicable
requirements of Section 6.8. If no successor Trustee shall have
been so appointed by the Company or the Holders and accepted
appointment within sixty (60) days after the giving of a notice
of resignation by the Trustee or the removal of the Trustee in
the manner required by Section 6.8, any Holder who has been a
bona fide Holder of a Security for at least six months may, on
behalf of such Holder and all others similarly situated, and any
resigning Trustee may, at the expense of the Company, petition
any court of competent jurisdiction for the appointment of a
successor Trustee.
(e) The Company shall give notice to all Holders in the
manner provided in Section 1.6 of each resignation and each
removal of the Trustee and each appointment of a successor
Trustee. Each notice shall include the name of the successor
Trustee and the address of its Corporate Trust Office.
SECTION 6.8. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee, each successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the
request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver
an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder.
45
(b) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee
all rights, powers and trusts referred to in paragraph (a) of
this Section 6.8.
(c) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article VI.
SECTION 6.9. Merger, Conversion, Consolidation or Succession
to Business.
Any Person into which the Trustee may be merged or
converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any Person succeeding to all or
substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder,
without the execution or filing of any paper or any further act
on the part of any of the parties hereto, provided, that such
Person shall be otherwise qualified and eligible under this
Article VI. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation or as
otherwise provided above in this Section 6.9 to such
authenticating Trustee may adopt such authentication and deliver
the Securities so authenticated, and in case any Securities
shall not have been authenticated, any successor to the Trustee
may authenticate such Securities either in the name of any
predecessor Trustee or in the name of such successor Trustee,
and in all cases the certificate of authentication shall have
the full force which it is provided anywhere in the Securities
or in this Indenture that the certificate of the Trustee shall
have.
SECTION 6.10. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as
the statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their
correctness. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Securities.
Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of the
Securities or the proceeds thereof.
SECTION 6.11. Appointment of Authenticating Agent.
(a) The Trustee may appoint an Authenticating Agent or Agents
with respect to the Securities, which shall be authorized to act
on behalf of the Trustee to authenticate Securities issued upon
original issue and upon exchange, registration of transfer or
partial redemption thereof or pursuant to Section 3.6, and
Securities so authenticated shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever
reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by
an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a
corporation organized and doing business under the laws of the
United States of America, or of any State or Territory thereof
or the District of Columbia, authorized under such laws to act
as Authenticating Agent, having a combined capital and surplus
of not less than $50,000,000 and subject to supervision or
examination by Federal or state authority. If such
46
Authenticating Agent publishes reports of condition at least
annually pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of
this Section 6.11 the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition
so published. If at any time an Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section
6.11, such Authenticating Agent shall resign immediately in the
manner and with the effect specified in this Section 6.11.
(b) Any Person into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
Person resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party, or any Person
succeeding to all or substantially all of the corporate trust
business of an Authenticating Agent shall be the successor
Authenticating Agent hereunder, provided such Person shall be
otherwise eligible under this Section 6.11, without the
execution or filing of any paper or any further act on the part
of the Trustee or the Authenticating Agent.
(c) An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The
Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at
any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.11, the Trustee
may appoint a successor Authenticating Agent eligible under the
provisions of this Section 6.11, which shall be acceptable to
the Company, and shall give notice of such appointment to all
Holders. Any successor Authenticating Agent upon acceptance of
its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent.
(d) The Company agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services under
this Section 6.11 in such amounts as the Company and the
Authenticating Agent shall agree from time to time.
(e) If an appointment of an Authenticating Agent is made
pursuant to this Section 6.11, the Securities may have endorsed
thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in
the following form:
This is one of the Securities designated therein referred to in
the within mentioned Indenture.
Dated:
THE BANK OF NEW YORK, not in its individual
capacity, but solely as Trustee
--------------------------------
Authenticating Agent
By:
-----------------------------
Authorized Officer
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ARTICLE VII
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, on or before June 30 and December 31 of
each year, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of a date
not more than fifteen (15) days prior to the delivery thereof,
and
(b) at such other times as the Trustee may request in
writing, within thirty (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 fifteen (15) days prior to the time
such list is furnished,
in each case to the extent such information is in the possession
or control of the Company and has not otherwise been received by
the Trustee in its capacity as Securities Registrar.
SECTION 7.2. Preservation of Information, Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders
contained in the most recent list furnished to the Trustee as
provided in Section 7.1 and the names and addresses of Holders
received by the Trustee in its capacity as Securities Registrar.
The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the
Trustee, shall be as provided in the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be
held accountable by reason of the disclosure of information as
to the names and addresses of the Holders made pursuant to the
Trust Indenture Act.
SECTION 7.3. Reports by Company.
(a) The Company shall furnish to the Holders and to
prospective purchasers of Securities, upon their request, the
information required to be furnished pursuant to Rule 144A(d)(4)
under the Securities Act. The Company shall furnish to the
Trustee and, so long as the Property Trustee holds any of the
Securities, the Company shall furnish to the Property Trustee,
reports on Form FR Y-9C, FR Y-9LP and FR Y-6 promptly following
their filing with the Federal Reserve Board.
(b) The Company shall furnish to each of (i) the Trustee,
(ii) the Holders and to subsequent holders of Securities, (iii)
Trapeza Manager, Inc. (at 507 Carew Tower, 441 Vine
48
Street, Cincinnati, OH 45202, or such other address as designated by
Trapeza Manager, Inc.) and (iv) to any beneficial owner of the
Securities reasonably identified to the Company (which
identification may be made either by such beneficial owner or by
Trapeza Manager, Inc.), a duly completed and executed
certificate in the form attached hereto as Exhibit A, including
the financial statements referenced in such Exhibit, which
certificate and financial statements shall be so furnished by
the Company not later than forty five (45) days after the end of
each of the first three fiscal quarters of each fiscal year of
the Company and not later than ninety (90) days after the end of
each fiscal year of the Company.
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 8.1. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any
other Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, and no Person
shall consolidate with or merge into the Company or convey,
transfer or lease its properties and assets substantially as an
entirety to the Company, unless:
(a) if the Company shall consolidate with or merge into
another Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the entity
formed by such consolidation or into which the Company is merged
or the Person that acquires by conveyance or transfer, or that
leases, the properties and assets of the Company substantially
as an entirety shall be an entity organized and existing under
the laws of the United States of America or any State or
Territory thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form reasonably satisfactory to
the Trustee, the due and punctual payment of the principal of
and any premium and interest (including any Additional Interest)
on all the Securities and the performance of every covenant of
this Indenture on the part of the Company to be performed or
observed;
(b) immediately after giving effect to such transaction, no
Event of Default, and no event that, after notice or lapse of
time, or both, would constitute an Event of Default, shall have
happened and be continuing; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such
transaction, any such supplemental indenture comply with this
Article VIII and that all conditions precedent herein provided
for relating to such transaction have been complied with; and
the Trustee may rely upon such Officers' Certificate and Opinion
of Counsel as conclusive evidence that such transaction complies
with this Section 8.1.
SECTION 8.2. Successor Company Substituted.
(a) Upon any consolidation or merger by the Company with or
into any other Person, or any conveyance, transfer or lease by
the Company of its properties and assets substantially as an
entirety to any Person in accordance with Section 8.1 and the
execution and delivery to the Trustee of the supplemental
indenture described in Section 8.1(a), the successor entity formed by
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such consolidation or into which the Company is merged
or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same
effect as if such successor Person had been named as the Company
herein; and in the event of any such conveyance or transfer,
following the execution and delivery of such supplemental
indenture, the Company shall be discharged from all obligations
and covenants under the Indenture and the Securities.
(b) Such successor Person may cause to be executed, and may
issue either in its own name or in the name of the Company, any
or all of the Securities issuable hereunder that theretofore
shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor Person instead of
the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities that previously
shall have been signed and delivered by the officers of the
Company to the Trustee for authentication, and any Securities
that such successor Person thereafter shall cause to be executed
and delivered to the Trustee on its behalf. All the Securities
so issued shall in all respects have the same legal rank and
benefit under this Indenture as the Securities theretofore or
thereafter issued in accordance with the terms of this
Indenture.
(c) In case of any such consolidation, merger, sale,
conveyance or lease, such changes in phraseology and form may be
made in the Securities thereafter to be issued as may be
appropriate to reflect such occurrence.
ARTICLE IX
Supplemental Indentures
SECTION 9.1. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures
supplemental hereto, in form reasonably satisfactory to the
Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the
covenants of the Company herein and in the Securities; or
(b) to cure any ambiguity, to correct or supplement any
provision herein that may be defective or inconsistent with any
other provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture,
which shall not be inconsistent with the other provisions of
this Indenture, provided, that such action pursuant to this
clause (b) shall not adversely affect in any material respect
the interests of any Holders or the holders of the Preferred
Securities; or
(c) to add to the covenants, restrictions or obligations of
the Company or to add to the Events of Default, provided, that
such action pursuant to this clause (c) shall not adversely
affect in any material respect the interests of any Holders or
the holders of the Preferred Securities; or
(d) to modify, eliminate or add to any provisions of the
Indenture or the Securities to such extent as shall be necessary
to ensure that the Securities are treated as indebtedness of the
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Company for United States Federal income tax purposes, provided,
that such action pursuant to this clause (d) shall not adversely
affect in any material respect the interests of any Holders or
the holders of the Preferred Securities.
SECTION 9.2. Supplemental Indentures with Consent of Holders.
(a) With the consent of the Holders of not less than a
majority in aggregate principal amount of the Outstanding
Securities, by Act of said Holders delivered to the Company and
the Trustee, the Company, when authorized by a Board Resolution,
and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions
of this Indenture or of modifying in any manner the rights of
the Holders of Securities under this Indenture; provided, that
no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security,
(i) change the Stated Maturity of the principal or any
premium of any Security or change the date of payment of
any installment of interest (including any Additional
Interest) on any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium
payable upon the redemption thereof or change the place of
payment where, or the coin or currency in which, any
Security or interest thereon is payable, or restrict or
impair the right to institute suit for the enforcement of
any such payment on or after such date, or
(ii) reduce the percentage in aggregate principal amount
of the Outstanding Securities, the consent of whose Holders
is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver of
compliance with any provision of this Indenture or of
defaults hereunder and their consequences provided for in
this Indenture, or
(iii) modify any of the provisions of this Section 9.2,
Section 5.13 or Section 10.7, except to increase any
percentage in aggregate principal amount of the Outstanding
Securities, the consent of whose Holders is required for
any reason, or to provide that certain other provisions of
this Indenture cannot be modified or waived without the
consent of the Holder of each Security;
provided, further, that, so long as any Preferred Securities
remain outstanding, no amendment under this Section 9.2 shall be
effective until the holders of a majority in Liquidation Amount
(as defined in the Trust Agreement) of the Trust Securities
shall have consented to such amendment; provided, further, that
if the consent of the holder of each Outstanding Security is
required for any amendment under this Indenture, such amendment
shall not be effective until the holder of each Outstanding
Trust Security shall have consented to such amendment.
(b) It shall not be necessary for any Act of Holders under
this Section 9.2 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
SECTION 9.3. Execution of Supplemental Indentures.
In executing or accepting the additional trusts created by
any supplemental indenture permitted by this Article IX or the
modifications thereby of the trusts created by this Indenture,
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the Trustee shall be entitled to receive, and shall be fully
protected in conclusively relying upon, an Officers' Certificate
and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this
Indenture, and that all conditions precedent herein provided for
relating to such action have been complied with. The Trustee
may, but shall not be obligated to, enter into any such
supplemental indenture that affects the Trustee's own rights,
duties, indemnities or immunities under this Indenture or
otherwise. Copies of the final form of each supplemental
indenture shall be delivered by the Trustee at the expense of
the Company to each Holder, and, if the Trustee is the Property
Trustee, to each holder of Preferred Securities, promptly after
the execution thereof.
SECTION 9.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article IX, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 9.5. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article IX may,
and shall if required by the Company, bear a notation in form
approved by the Company as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new
Securities so modified as to conform, in the opinion of the
Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities.
ARTICLE X
Covenants
SECTION 10.1. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of the
Securities that it will duly and punctually pay the principal of
and any premium and interest (including any Additional Interest)
on the Securities in accordance with the terms of the Securities
and this Indenture.
SECTION 10.2. Money for Security Payments to be Held in Trust.
(a) If the Company shall at any time act as its own Paying
Agent with respect to the Securities, it will, on or before each
due date of the principal of and any premium or interest
(including any Additional Interest) on the Securities, segregate
and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium or
interest (including Additional Interest) so becoming due until
such sums shall be paid to such Persons or otherwise disposed of
as herein provided, and will promptly notify the Trustee in
writing of its failure so to act.
(b) Whenever the Company shall have one or more Paying
Agents, it will, prior to 10:00 a.m., New York City time, on
each due date of the principal of or any premium or interest
(including any Additional Interest) on any Securities, deposit
with a Paying Agent a sum
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sufficient to pay such amount, such sum to be held as provided
in the Trust Indenture Act and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its failure
so to act.
(c) The Company will cause each Paying Agent for the
Securities other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section
10.2, that such Paying Agent will (i) comply with the provisions
of the Trust Indenture Act applicable to it as a Paying Agent
and (ii) during the continuance of any default by the Company
(or any other obligor upon the Securities) in the making of any
payment in respect of the Securities, upon the written request
of the Trustee, forthwith pay to the Trustee all sums held in
trust by such Paying Agent for payment in respect of the
Securities.
(d) The Company may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any
other purpose, pay, or by Company Order direct any Paying Agent
to pay, to the Trustee all sums held in trust by the Company or
such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
(e) Any money deposited with the Trustee or any Paying Agent,
or then held by the Company in trust for the payment of the
principal of and any premium or interest (including any
Additional Interest) on any Security and remaining unclaimed for
two years after such principal and any premium or interest has
become due and payable shall (unless otherwise required by
mandatory provision of applicable escheat or abandoned or
unclaimed property law) be paid on Company Request to the
Company, or (if then held by the Company) shall (unless
otherwise required by mandatory provision of applicable escheat
or abandoned or unclaimed property law) be discharged from such
trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent
with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided,
that the Trustee or such Paying Agent, before being required to
make any such repayment, may at the expense of the Company cause
to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of
general circulation in the Borough of Manhattan, The City of New
York, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than thirty (30)
days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
SECTION 10.3. Statement as to Compliance.
The Company shall deliver to the Trustee, within one
hundred and twenty (120) days after the end of each fiscal year
of the Company ending after the date hereof, an Officers'
Certificate covering the preceding calendar year, stating
whether or not to the knowledge of the signers thereof the
Company is in default in the performance or observance of any of
the terms, provisions and conditions of this Indenture (without
regard to any period of grace or requirement of notice provided
hereunder), and if the Company shall be in default, specifying
all such defaults and the nature and status thereof of which
they may have knowledge.
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SECTION 10.4. Calculation Agent.
(a) The Company hereby agrees that for so long as any of the
Securities remain Outstanding, there will at all times be an
agent appointed to calculate LIBOR in respect of each Interest
Payment Date in accordance with the terms of Schedule A (the
"Calculation Agent"). The Company has initially appointed the
Trustee as Calculation Agent for purposes of determining LIBOR
for each Interest Payment Date. The Calculation Agent may be
removed by the Company at any time. So long as the Property
Trustee holds any of the Securities, the Calculation Agent shall
be the Property Trustee. If the Calculation Agent is unable or
unwilling to act as such or is removed by the Company, the
Company will promptly appoint as a replacement Calculation Agent
the London office of a leading bank which is engaged in
transactions in Eurodollar deposits in the international
Eurodollar market and which does not control or is not
controlled by or under common control with the Company or its
Affiliates. The Calculation Agent may not resign its duties
without a successor having been duly appointed.
(b) The Calculation Agent shall be required to agree that, as
soon as possible after 11:00 a.m. (London time) on each LIBOR
Determination Date (as defined in Schedule A), but in no event
later than 11:00 a.m. (London time) on the Business Day
immediately following each LIBOR Determination Date, the
Calculation Agent will calculate the interest rate (the Interest
Payment shall be rounded to the nearest cent, with half a cent
being rounded upwards) for the related Interest Payment Date,
and will communicate such rate and amount to the Company, the
Trustee, each Paying Agent and the Depositary. The Calculation
Agent will also specify to the Company the quotations upon which
the foregoing rates and amounts are based and, in any event, the
Calculation Agent shall notify the Company before 5:00 p.m.
(London time) on each LIBOR Determination Date that either:
(i) it has determined or is in the process of determining the
foregoing rates and amounts or (ii) it has not determined and is
not in the process of determining the foregoing rates and
amounts, together with its reasons therefor. The Calculation
Agent's determination of the foregoing rates and amounts for any
Interest Payment Date will (in the absence of manifest error) be
final and binding upon all parties. For the sole purpose of
calculating the interest rate for the Securities, "Business Day"
shall be defined as any day on which dealings in deposits in
Dollars are transacted in the London interbank market.
SECTION 10.5. Additional Tax Sums.
So long as no Event of Default has occurred and is
continuing, if (a) the Trust is the Holder of all of the
Outstanding Securities and (b) a Tax Event described in clause
(i) or (iii) in the definition of Tax Event in Section 1.1
hereof has occurred and is continuing, the Company shall pay to
the Trust (and its permitted successors or assigns under the
related Trust Agreement) for so long as the Trust (or its
permitted successor or assignee) is the registered holder of the
Outstanding Securities, such amounts as may be necessary in
order that the amount of Distributions (including any Additional
Interest Amount (as defined in the Trust Agreement)) then due
and payable by the Trust on the Preferred Securities and Common
Securities that at any time remain outstanding in accordance
with the terms thereof shall not be reduced as a result of any
Additional Taxes arising from such Tax Event (additional such
amounts payable by the Company to the Trust, the "Additional Tax
Sums"). Whenever in this Indenture or the Securities there is a
reference in any context to the payment of principal of or
interest on the Securities, such mention shall be deemed to
include mention of the payments of the Additional Tax Sums
provided for in this Section 10.5 to the extent that, in such
context, Additional Tax Sums are,
54
were or would be payable in respect thereof pursuant to the provisions
of this Section 10.5 and express mention of the payment of Additional Tax
Sums (if applicable) in any provisions hereof shall not be construed as
excluding Additional Tax Sums in those provisions hereof where
such express mention is not made; provided, that the deferral of
the payment of interest pursuant to Section 3.9 on the
Securities shall not defer the payment of any Additional Tax
Sums that may be due and payable.
SECTION 10.6. Additional Covenants.
(a) The Company covenants and agrees with each Holder of
Securities that if an Event of Default shall have occurred and
be continuing or the Company shall have given notice of its
election to begin an Extension Period with respect to the
Securities and shall not have rescinded such notice, or such
Extension Period, or any extension thereof, shall be continuing,
it shall not (i) declare or pay any dividends or distributions
on, or redeem purchase, acquire or make a liquidation payment
with respect to, any shares of the Company's capital stock, or
(ii) make any payment of principal of or any interest or premium
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 Securities (other than (A) repurchases,
redemptions or other acquisitions of shares of capital stock of
the Company in connection with any employment contract, benefit
plan or other similar arrangement with or for the benefit of any
one or more employees, officers, directors or consultants, in
connection with a dividend reinvestment or stockholder stock
purchase plan or 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 applicable
Extension Period, (B) as a result of an exchange 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 Rights Plan, the issuance
of rights, stock or other property under any 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).
(b) The Company also covenants with each Holder of Securities
(i) to hold, directly or indirectly, one hundred percent (100%)
of the Common Securities of the Trust, provided, that any
permitted successor of the Company hereunder may succeed to the
Company's ownership of such Common Securities, (ii) as holder of
such Common Securities, not to voluntarily dissolve, wind-up or
liquidate the Trust other than (A) in connection with a
distribution of the Securities to the holders of the Preferred
Securities in liquidation of the Trust or (B) in connection with
certain mergers, consolidations or amalgamations permitted by
the Trust Agreement and (iii) to use its reasonable commercial
efforts, consistent with the terms and provisions of the Trust
Agreement, to cause the Trust to continue to be taxable as a
grantor trust and not as a corporation for United States Federal
income tax purposes.
55
SECTION 10.7. Waiver of Covenants.
The Company may omit in any particular instance to comply
with any covenant or condition contained in Section 10.6 if,
before or after the time for such compliance, the Holders of at
least a majority in aggregate principal amount of the
Outstanding Securities shall, by Act of such Holders, and at
least a majority of the aggregate Liquidation Amount (as defined
in the Trust Agreement) of the Preferred Securities then
outstanding, by consent of such holders, either waive such
compliance in such instance or generally waive compliance with
such covenant or condition, but no such waiver shall extend to
or affect such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective,
the obligations of the Company in respect of any such covenant
or condition shall remain in full force and effect.
SECTION 10.8. Treatment of Securities.
The Company will treat the Securities as indebtedness, and
the amounts, other than payments of principal, payable in
respect of the principal amount of such Securities as interest,
for all U.S. federal income tax purposes. All payments in
respect of the 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-8BEN (or any
substitute or successor form) establishing its non-U.S. status
for U.S. federal income tax purposes.
ARTICLE XI
Redemption of Securities
SECTION 11.1. Optional Redemption.
The Company may, at its option, on any Interest Payment
Date, on or after June 15, 2008, redeem the Securities in whole
at any time or in part from time to time, at a Redemption Price
equal to one hundred percent (100%) of the principal amount
thereof (or of the redeemed portion thereof, as applicable),
together, in the case of any such redemption, with accrued
interest, including any Additional Interest, to but excluding
the date fixed for redemption; provided, that the Company shall
have received the prior approval of the Federal Reserve Board
with respect to such redemption if then required.
SECTION 11.2. Special Event Redemption.
Upon the occurrence and during the continuation of a
Special Event, the Company may, at its option, redeem the
Securities, in whole but not in part, at a Redemption Price
equal to one hundred percent (100%) of the principal amount
thereof, together, in the case of any such redemption, with
accrued interest, including any Additional Interest, to but
excluding the date fixed for redemption; provided, that the
Company shall have received the prior approval of the Federal
Reserve Board with respect to such redemption if then required.
SECTION 11.3. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities, in
whole or in part, shall be evidenced by or pursuant to a Board
Resolution. In case of any redemption at the election of the
Company, the Company shall, not less than forty five (45) days
and not more than seventy five
56
(75) days prior to the Redemption Date (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee and the Property Trustee
under the Trust Agreement in writing of such date and of the principal
amount of the Securities to be redeemed and provide the
additional information required to be included in the notice or
notices contemplated by Section 11.5. In the case of any
redemption of Securities, in whole or in part, (a) prior to the
expiration of any restriction on such redemption provided in
this Indenture or the Securities or (b) pursuant to an election
of the Company which is subject to a condition specified in this
Indenture or the Securities, the Company shall furnish the
Trustee with an Officers' Certificate and an Opinion of Counsel
evidencing compliance with such restriction or condition.
SECTION 11.4. Selection of Securities to be Redeemed.
(a) If less than all the Securities are to be redeemed, the
particular Securities to be redeemed shall be selected not more
than sixty (60) days prior to the Redemption Date by the Trustee
from the Outstanding Securities not previously called for
redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for
redemption of a portion of the principal amount of any or each
Security, provided, that the unredeemed portion of the principal
amount of any Security shall be in an authorized denomination
(which shall not be less than the minimum authorized
denomination) for such Security.
(b) The Trustee shall promptly notify the Company in writing
of the Securities selected for redemption and, in the case of
any Securities selected for partial redemption, the principal
amount thereof to be redeemed. For all purposes of this
Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities shall relate, in the
case of any Security redeemed or to be redeemed only in part, to
the portion of the principal amount of such Security that has
been or is to be redeemed.
(c) The provisions of paragraphs (a) and (b) of this Section
11.4 shall not apply with respect to any redemption affecting
only a single Security, whether such Security is to be redeemed
in whole or in part. In the case of any such redemption in part,
the unredeemed portion of the principal amount of the Security
shall be in an authorized denomination (which shall not be less
than the minimum authorized denomination) for such Security.
SECTION 11.5. Notice of Redemption.
(a) Notice of redemption shall be given not later than the
thirtieth (30th) day, and not earlier than the sixtieth (60th)
day, prior to the Redemption Date to each Holder of Securities
to be redeemed, in whole or in part, (unless a shorter notice
shall be satisfactory to the Property Trustee under the related
Trust Agreement).
(b) With respect to Securities to be redeemed, in whole or in
part, each notice of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price or, if the Redemption Price
cannot be calculated prior to the time the notice is
required to be sent, the estimate of the Redemption Price,
as calculated by the Company, together with a statement
that it is an estimate and that the
57
actual Redemption Price will be calculated on the fifth
Business Day prior to the Redemption Date (and if an estimate
is provided, a further notice shall be sent of the actual Redemption
Price on the date that such Redemption Price is calculated);
(iii) if less than all Outstanding Securities are to be
redeemed, the identification (and, in the case of partial
redemption, the respective principal amounts) of the
particular Securities to be redeemed;
(iv) that on the Redemption Date, the Redemption Price
will become due and payable upon each such Security or
portion thereof, and that any interest (including any
Additional Interest) on such Security or such portion, as
the case may be, shall cease to accrue on and after said
date; and
(v) the place or places where such Securities are to be
surrendered for payment of the Redemption Price.
(c) Notice of redemption of Securities to be redeemed, in
whole or in part, at the election of the Company shall be given
by the Company or, at the Company's request, by the Trustee in
the name and at the expense of the Company and shall be
irrevocable. The notice if mailed in the manner provided above
shall be conclusively presumed to have been duly given, whether
or not the Holder receives such notice. In any case, a failure
to give such notice by mail or any defect in the notice to the
Holder of any Security designated for redemption as a whole or
in part shall not affect the validity of the proceedings for the
redemption of any other Security.
SECTION 11.6. Deposit of Redemption Price.
Prior to 10:00 a.m., New York City time, on the Redemption
Date specified in the notice of redemption given as provided in
Section 11.5, the Company will deposit with the Trustee or with
one or more Paying Agents (or if the Company is acting as its
own Paying Agent, the Company will segregate and hold in trust
as provided in Section 10.2) an amount of money sufficient to
pay the Redemption Price of, and any accrued interest (including
any Additional Interest) on, all the Securities (or portions
thereof) that are to be redeemed on that date.
SECTION 11.7. Payment of Securities Called for Redemption.
(a) If any notice of redemption has been given as provided in
Section 11.5, the Securities or portion of Securities with
respect to which such notice has been given shall become due and
payable on the date and at the place or places stated in such
notice at the applicable Redemption Price, together with accrued
interest (including any Additional Interest) to the Redemption
Date. On presentation and surrender of such Securities at a
Place of Payment specified in such notice, the Securities or the
specified portions thereof shall be paid and redeemed by the
Company at the applicable Redemption Price, together with
accrued interest (including any Additional Interest) to the
Redemption Date.
(b) Upon presentation of any Security redeemed in part only,
the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a
new Security or Securities, of authorized denominations, in
aggregate principal amount equal to the unredeemed portion of
the Security so presented and having the same Original Issue
Date, Stated Maturity and terms.
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(c) If any Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal of and
any premium on such Security shall, until paid, bear interest
from the Redemption Date at the rate prescribed therefor in the
Security.
ARTICLE XII
Subordination of Securities
SECTION 12.1. Securities Subordinate to Senior Debt.
The Company covenants and agrees, and each Holder of a
Security, by its acceptance thereof, likewise covenants and
agrees, that, to the extent and in the manner hereinafter set
forth in this Article XII, the payment of the principal of and
any premium and interest (including any Additional Interest) on
each and all of the Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment
in full of all Senior Debt.
SECTION 12.2. No Payment When Senior Debt in Default; Payment
Over of Proceeds Upon Dissolution, Etc.
(a) In the event and during the continuation of any default
by the Company in the payment of any principal of or any premium
or interest on any Senior Debt (following any grace period, if
applicable) when the same becomes due and payable, whether at
maturity or at a date fixed for prepayment or by declaration of
acceleration or otherwise, then, upon written notice of such
default to the Company by the holders of such Senior Debt or any
trustee therefor, unless and until such default shall have been
cured or waived or shall have ceased to exist, no direct or
indirect payment (in cash, property, securities, by set-off or
otherwise) shall be made or agreed to be made on account of the
principal of or any premium or interest (including any
Additional Interest) on any of the Securities, or in respect of
any redemption, repayment, retirement, purchase or other
acquisition of any of the Securities.
(b) In the event of a bankruptcy, insolvency or other
proceeding described in clause (d) or (e) of the definition of
Event of Default (each such event, if any, herein sometimes
referred to as a "Proceeding"), all Senior Debt (including any
interest thereon accruing after the commencement of any such
proceedings) shall first be paid in full before any payment or
distribution, whether in cash, securities or other property,
shall be made to any Holder of any of the Securities on account
thereof. Any payment or distribution, whether in cash,
securities or other property (other than securities of the
Company or any other entity provided for by a plan of
reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in these
subordination provisions with respect to the indebtedness
evidenced by the Securities, to the payment of all Senior Debt
at the time outstanding and to any securities issued in respect
thereof under any such plan of reorganization or readjustment),
which would otherwise (but for these subordination provisions)
be payable or deliverable in respect of the Securities shall be
paid or delivered directly to the holders of Senior Debt in
accordance with the priorities then existing among such holders
until all Senior Debt (including any interest thereon accruing
after the commencement of any Proceeding) shall have been paid
in full.
(c) In the event of any Proceeding, after payment in full of
all sums owing with respect to Senior Debt, the Holders of the
Securities, together with the holders of any obligations of the
59
Company ranking on a parity with the Securities, shall be
entitled to be paid from the remaining assets of the Company the
amounts at the time due and owing on account of unpaid principal
of and any premium and interest (including any Additional
Interest) on the Securities and such other obligations before
any payment or other distribution, whether in cash, property or
otherwise, shall be made on account of any capital stock or any
obligations of the Company ranking junior to the Securities and
such other obligations. If, notwithstanding the foregoing, any
payment or distribution of any character or any security,
whether in cash, securities or other property (other than
securities of the Company or any other entity provided for by a
plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in these
subordination provisions with respect to the indebtedness
evidenced by the Securities, to the payment of all Senior Debt
at the time outstanding and to any securities issued in respect
thereof under any such plan of reorganization or readjustment)
shall be received by the Trustee or any Holder in contravention
of any of the terms hereof and before all Senior Debt shall have
been paid in full, such payment or distribution or security
shall be received in trust for the benefit of, and shall be paid
over or delivered and transferred to, the holders of the Senior
Debt at the time outstanding in accordance with the priorities
then existing among such holders for application to the payment
of all Senior Debt remaining unpaid, to the extent necessary to
pay all such Senior Debt (including any interest thereon
accruing after the commencement of any Proceeding) in full. In
the event of the failure of the Trustee or any Holder to endorse
or assign any such payment, distribution or security, each
holder of Senior Debt is hereby irrevocably authorized to
endorse or assign the same.
(d) The Trustee and the Holders, at the expense of the
Company, shall take such reasonable action (including the
delivery of this Indenture to an agent for any holders of Senior
Debt or consent to the filing of a financing statement with
respect hereto) as may, in the opinion of counsel designated by
the holders of a majority in principal amount of the Senior Debt
at the time outstanding, be necessary or appropriate to assure
the effectiveness of the subordination effected by these
provisions.
(e) The provisions of this Section 12.2 shall not impair any
rights, interests, remedies or powers of any secured creditor of
the Company in respect of any security interest the creation of
which is not prohibited by the provisions of this Indenture.
(f) The securing of any obligations of the Company, otherwise
ranking on a parity with the Securities or ranking junior to the
Securities, shall not be deemed to prevent such obligations from
constituting, respectively, obligations ranking on a parity with
the Securities or ranking junior to the Securities.
SECTION 12.3. Payment Permitted If No Default.
Nothing contained in this Article XII or elsewhere in this
Indenture or in any of the Securities shall prevent (a) the
Company, at any time, except during the pendency of the
conditions described in paragraph (a) of Section 12.2 or of any
Proceeding referred to in Section 12.2, from making payments at
any time of principal of and any premium or interest (including
any Additional Interest) on the Securities or (b) the
application by the Trustee of any moneys deposited with it
hereunder to the payment of or on account of the principal of
and any premium or interest (including any Additional Interest)
on the Securities or the retention of such payment by the
Holders, if, at the time of such application by the Trustee, it
did not have knowledge (in
60
accordance with Section 12.8) that
such payment would have been prohibited by the provisions of
this Article XII, except as provided in Section 12.8.
SECTION 12.4. Subrogation to Rights of Holders of Senior Debt.
Subject to the payment in full of all amounts due or to
become due on all Senior Debt, or the provision for such payment
in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt, the Holders of the
Securities shall be subrogated to the extent of the payments or
distributions made to the holders of such Senior Debt pursuant
to the provisions of this Article XII (equally and ratably with
the holders of all indebtedness of the Company that by its
express terms is subordinated to Senior Debt of the Company to
substantially the same extent as the Securities are subordinated
to the Senior Debt and is entitled to like rights of subrogation
by reason of any payments or distributions made to holders of
such Senior Debt) to the rights of the holders of such Senior
Debt to receive payments and distributions of cash, property and
securities applicable to the Senior Debt until the principal of
and any premium and interest (including any Additional Interest)
on the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the
Senior Debt of any cash, property or securities to which the
Holders of the Securities or the Trustee would be entitled
except for the provisions of this Article XII, and no payments
made pursuant to the provisions of this Article XII to the
holders of Senior Debt by Holders of the Securities or the
Trustee, shall, as among the Company, its creditors other than
holders of Senior Debt, and the Holders of the Securities, be
deemed to be a payment or distribution by the Company to or on
account of the Senior Debt.
SECTION 12.5. Provisions Solely to Define Relative Rights.
The provisions of this Article XII are and are intended
solely for the purpose of defining the relative rights of the
Holders of the Securities on the one hand and the holders of
Senior Debt on the other hand. Nothing contained in this Article
XII or elsewhere in this Indenture or in the Securities is
intended to or shall (a) impair, as between the Company and the
Holders of the Securities, the obligations of the Company, which
are absolute and unconditional, to pay to the Holders of the
Securities the principal of and any premium and interest
(including any Additional Interest) on the Securities as and
when the same shall become due and payable in accordance with
their terms, (b) affect the relative rights against the Company
of the Holders of the Securities and creditors of the Company
other than their rights in relation to the holders of Senior
Debt or (c) prevent the Trustee or the Holder of any Security
(or to the extent expressly provided herein, the holder of any
Preferred Security) from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture,
including filing and voting claims in any Proceeding, subject to
the rights, if any, under this Article XII of the holders of
Senior Debt to receive cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder.
SECTION 12.6. Trustee to Effectuate Subordination.
Each Holder of a Security by his or her acceptance thereof
authorizes and directs the Trustee on his or her behalf to take
such action as may be necessary or appropriate to acknowledge or
effectuate the subordination provided in this Article XII and
appoints the Trustee his or her attorney-in-fact for any and all
such purposes.
61
SECTION 12.7. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Senior
Debt to enforce subordination as herein provided shall at any
time in any way be prejudiced or impaired by any act or failure
to act on the part of the Company or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance
by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof that any such
holder may have or be otherwise charged with.
(b) Without in any way limiting the generality of paragraph
(a) of this Section 12.7, the holders of Senior Debt may, at any
time and from to time, without the consent of or notice to the
Trustee or the Holders of the Securities, without incurring
responsibility to such Holders of the Securities and without
impairing or releasing the subordination provided in this
Article XII or the obligations hereunder of such Holders of the
Securities to the holders of Senior Debt, do any one or more of
the following: (i) change the manner, place or terms of payment
or extend the time of payment of, or renew or alter, Senior
Debt, or otherwise amend or supplement in any manner Senior Debt
or any instrument evidencing the same or any agreement under
which Senior Debt is outstanding, (ii) sell, exchange, release
or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Debt, (iii) release any Person liable
in any manner for the payment of Senior Debt and (iv) exercise
or refrain from exercising any rights against the Company and
any other Person.
SECTION 12.8. Notice to Trustee.
(a) The Company shall give prompt written notice to a
Responsible Officer of the Trustee of any fact known to the
Company that would prohibit the making of any payment to or by
the Trustee in respect of the Securities. Notwithstanding the
provisions of this Article XII or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any
payment to or by the Trustee in respect of the Securities,
unless and until a Responsible Officer of the Trustee shall have
received written notice thereof from the Company or a holder of
Senior Debt or from any trustee, agent or representative
therefor; provided, that if the Trustee shall not have received
the notice provided for in this Section 12.8 at least two
Business Days prior to the date upon which by the terms hereof
any monies may become payable for any purpose (including, the
payment of the principal of and any premium on or interest
(including any Additional Interest) on any Security), then,
anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such
monies and to apply the same to the purpose for which they were
received and shall not be affected by any notice to the contrary
that may be received by it within two Business Days prior to
such date.
(b) The Trustee shall be entitled to rely on the delivery to
it of a written notice by a Person representing himself or
herself to be a holder of Senior Debt (or a trustee, agent,
representative or attorney-in-fact therefor) to establish that
such notice has been given by a holder of Senior Debt (or a
trustee, agent, representative or attorney-in-fact therefor). In
the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as
a holder of Senior Debt to participate in any payment or
distribution pursuant to this Article XII, the Trustee may
request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Debt held
by such Person, the
62
extent to which such Person is entitled to participate in such payment
or distribution and any other facts pertinent to the rights of such Person
under this Article XII, and if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial determination as to
the right of such Person to receive such payment.
SECTION 12.9. Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets of the Company
referred to in this Article XII, the Trustee and the Holders of
the Securities shall be entitled to conclusively rely upon any
order or decree entered by any court of competent jurisdiction
in which such Proceeding is pending, or a certificate of the
trustee in bankruptcy, receiver, liquidating trustee, custodian,
assignee for the benefit of creditors, agent or other Person
making such payment or distribution, delivered to the Trustee or
to the Holders of Securities, for the purpose of ascertaining
the Persons entitled to participate in such payment or
distribution, the holders of the Senior Debt and other
indebtedness of the Company, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and
all other facts pertinent thereto or to this Article XII.
SECTION 12.10. Trustee Not Fiduciary for Holders of Senior Debt.
The Trustee, in its capacity as trustee under this
Indenture, shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt and shall not be liable to any such
holders if it shall in good faith mistakenly pay over or
distribute to Holders of Securities or to the Company or to any
other Person cash, property or securities to which any holders
of Senior Debt shall be entitled by virtue of this Article XII
or otherwise.
SECTION 12.11. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article XII with respect to any
Senior Debt that may at any time be held by it, to the same
extent as any other holder of Senior Debt, and nothing in this
Indenture shall deprive the Trustee of any of its rights as such
holder.
SECTION 12.12. Article Applicable to Paying Agents.
If at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting
hereunder, the term "Trustee" as used in this Article XII shall
in such case (unless the context otherwise requires) be
construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article XII in addition to or in
place of the Trustee; provided, that Sections 12.8 and 12.11
shall not apply to the Company or any Affiliate of the Company
if the Company or such Affiliate acts as Paying Agent.
* * * *
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute
but one and the same instrument.
* * * *
63
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above
written.
WESBANCO, INC.
By: /s/ Robert H. Young
--------------------------------
Name: Robert H. Young
Title: Executive Vice President
and Chief Financial Officer
THE BANK OF NEW YORK, not in its
individual capacity, but solely as
Trustee
By: /s/ Van Brown
---------------------------------
Name: Van Brown
Title: Vice President
64
Schedule A
DETERMINATION OF LIBOR
With respect to the Securities, the London interbank
offered rate ("LIBOR") shall be determined by the Calculation
Agent in accordance with the following provisions (in each case
rounded to the nearest .000001%):
(1) On the second LIBOR Business Day (as defined below) prior
to an Interest Payment Date (except with respect to the first
interest payment period, such date shall be June 19, 2003) (each
such day, a "LIBOR Determination Date"), LIBOR for any given
security shall for the following interest payment period equal
the rate, as obtained by the Calculation Agent from Bloomberg
Financial Markets Commodities News, for three-month Eurodollar
deposits that appears on Dow Jones Telerate Page 3750 (as
defined in the International Swaps and Derivatives Association,
Inc. 1991 Interest Rate and Currency Exchange Definitions), or
such other page as may replace such Page 3750, as of 11:00 a.m.
(London time) on such LIBOR Determination Date.
(2) If, on any LIBOR Determination Date, such rate does not
appear on Dow Jones Telerate Page 3750 or such other page as may
replace such Page 3750, 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 Eurodollar deposits 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 such arithmetic mean of such
quotations. If, on any LIBOR Determination Date, only one or
none of the Reference Banks provide such quotations, LIBOR shall
be deemed to be the arithmetic mean of the offered quotations
that leading banks in the City of New York selected by the
Calculation Agent are quoting on the relevant LIBOR
Determination Date for three-month Eurodollar deposits in an
amount determined by the Calculation Agent by reference to the
principal London offices of leading banks in the London
interbank market; provided that, 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 shall be LIBOR
as determined on the previous LIBOR Determination Date.
(3) As used herein: "Reference Banks" means four major banks in
the London interbank market selected by the Calculation Agent;
and "LIBOR Business Day" means a day on which commercial banks
are open for business (including dealings in foreign exchange
and foreign currency deposits) in London.
Schedule A-1
Exhibit A
Officer's Certificate
The undersigned, the [Chief Financial Officer]
[Treasurer] [Executive Vice President] hereby certifies,
pursuant to Section 7.3(b) of the Junior Subordinated
Indenture, dated as of June 19, 2003, among WesBanco, Inc.
(the "Company") and The Bank of New York, as trustee, that,
as of [date], [20__], the Company had the following ratios and
balances:
BANK HOLDING COMPANY
As of [Quarterly Financial Dates], 20__
Tier 1 Risk Weighted Assets %
Ratio of Double Leverage %
Non-Performing Assets to Loans and OREO %
Tangible Common Equity as a Percentage of Tangible Assets %
Ratio of Reserves to Non-Performing Loans %
Ratio of Net Charge-Offs to Loans %
Return on Average Assets (annualized) %
Net Interest Margin (annualized) %
Efficiency Ratio %
Ratio of Loans to Assets %
Ratio of Loans to Deposits %
Double Leverage (exclude trust preferred as equity) %
Total Assets $
Year to Date Income $
* A table describing the quarterly report calculation
procedures is provided on page __
[FOR FISCAL YEAR END: Attached hereto are the audited
consolidated financial statements (including the balance
sheet, income statement and statement of cash flows, and notes
thereto, together with the report of the independent
accountants thereon) of the Company and its consolidated
subsidiaries for the three years ended [date], 20__.]
[FOR FISCAL QUARTER END: Attached hereto are the unaudited
consolidated and consolidating financial statements
(including the balance sheet and income statement) of the
Company and its consolidated subsidiaries for the fiscal
quarter ended [date], 20__.]
The financial statements fairly present in all material
respects, in accordance with U.S. generally accepted
accounting principles ("GAAP"), the financial position of the
Company and its consolidated subsidiaries, and the results of
operations and changes in financial
Ex. B-1
Exhibit A
condition as of the date, and for the [___ quarter interim]
[annual] period ended [date], 20__, and such financial statements
have been prepared in accordance with GAAP consistently applied
throughout the period involved (expect as otherwise noted therein).
IN WITNESS WHEREOF, the undersigned has executed this
Officer's Certificate as of this _____ day of _____________, 20__
_________________________________
Name:
Title:
WesBanco, Inc.
One Bank Plaza
Wheeling, WV 26003
(304) 234-9447
Ex. B-2
Exhibit B
Financial Definitions
BANK HOLDING COMPANY
Corresponding FRY-9C or
LP Line Items with Line Item Description
Report Item corresponding Schedules of Calculation
- ------------ ----------------------------- ------------------------
Tier 1 Risk
Weighted Assets BHCK7206 Schedule HC-R Tier 1 Risk Ratio:
Core Capital (Tier 1)/
Risk-Adjusted Assets
- -----------------------------------------------------------------------------
Ratio of Double (BHCP0365)/(BCHCP3210) Total equity investments
Leverage Schedule PC in the LP in subsidiaries divided
by the total equity
capital. This field is
calculated at the parent
company level.
"Subsidiaries" include
bank, bank holding
company, and non-bank
subsidiaries.
- -----------------------------------------------------------------------------
Non-Performing (BHCK5525-BHCK3506+BHCK5526- Total Nonperforming
Assets to Loans BHCK3507+BHCK2744)/(BHCK2122+ Assets (NPLs+Foreclosed
and OREO BHCK2744) Schedules HC-C, Real Estate+Other
HC-M & HC-N Nonaccrual & Repossessed
Assets)/Total Loans+
Foreclosed Real Estate
- -----------------------------------------------------------------------------
Tangible Common (BHDM3210-BHCK3163)/(BHCK2170- (Equity Capital -
Equity as a BHCK3163) Schedule HC Goodwill)/(Total Assets-
Percentage of Goodwill)
Tangible Assets
- -----------------------------------------------------------------------------
Ratio of Reserves (BHCK3123+BHCK3128)/(BHCK5525- Total Loan Loss and
to Non-Performing BHCK3506+BHCK5526-BHCK3507) Allocated Transfer Risk
Loans Schedules HC & HC-N & HC-R Reserves/ Total
Nonperforming Loans
(Nonaccrual+Restructured)
- -----------------------------------------------------------------------------
Ratio of Net (BHCK4635-BHCK4605)/(BHCK3516) Net charge offs for the
Charge-Offs Schedules HC-B & HC-K period as a percentage
to Loans of average loans.
- -----------------------------------------------------------------------------
Return on Average (BHCK4340/BHCK3368) Net Income as a
Assets (annualized) Schedules HI & HC-K percentage of Assets.
- -----------------------------------------------------------------------------
Net Interest (BHCK4519)/(BHCK3515+BHCK3365+ (Net Interest Income
Margin (annualized) BHCK3516+BHCK3401+BHCKB985) Fully Taxable Equivalent,
Schedules HI Memorandum if available/Average
and HC-K Earning Assets)
- -----------------------------------------------------------------------------
Efficiency Ratio (BHCK4093)/(BHCK4519+BHCK4079) (Non-interest Expense)/
Schedule HI (Net Interest Income
Fully Taxable Equivalent,
if available, plus Non-
interest Income)
- -----------------------------------------------------------------------------
Ratio of Loans (BHCKB528+BHCK5369)/(BHCK2170) Total Loans & Leases
to Assets Schedule HC (Net of Unearned Income
& Gross of Reserve)/
Total Assets
- -----------------------------------------------------------------------------
Ratio of Loans (BHCKB528+BHCK5369)/(BHDM6631+ Total Loans & Leases
to Deposits BHDM6636+BHFN6631+BHFN6636) (Net of Unearned
Schedule HC Income & Gross of
Reserve)/Total Deposits
(Includes Domestic and
Foreign Deposits)
- -----------------------------------------------------------------------------
Ex B-1
Exhibit B
Total Assets (BHCK2170)
Schedule HC The sum of total assets.
Includes cash and balances
due from depository
institutions; securities;
federal funds sold and
securities purchased under
agreements to resell; loans
and lease financing
receivables; trading assets;
premises and fixed assets;
other real estate owned;
investments in unconsolidated
subsidiaries and associated
companies; customer's
liability on acceptances
outstanding; intangible
assets; and other assets.
- ----------------------------------------------------------------------------
Net Income (BHCK4300)
Schedule HI The sum of income (loss)
before extraordinary items
and other adjustments and
extraordinary items; and
other adjustments, net of
income taxes.