Exhibit 4.6
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WESBANCO, INC.,
as Issuer
INDENTURE
Dated as of June 26, 2003
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
FIXED/FLOATING RATE JUNIOR SUBORDINATED DEFERRABLE INTEREST
DEBENTURES
DUE 2033
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TABLE OF CONTENTS
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Page
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ARTICLE I. DEFINITIONS................................................. 1
Section 1.1. Definitions....................................... 1
ARTICLE II. DEBENTURES................................................. 8
Section 2.1. Authentication and Dating......................... 8
Section 2.2. Form of Trustee's Certificate of Authentication... 9
Section 2.3. Form and Denomination of Debentures............... 9
Section 2.4. Execution of Debentures........................... 9
Section 2.5. Exchange and Registration of Transfer of Debentures. 9
Section 2.6. Mutilated, Destroyed, Lost or Stolen Debentures... 11
Section 2.7. Temporary Debentures.............................. 12
Section 2.8. Payment of Interest and Additional Interest....... 12
Section 2.9. Cancellation of Debentures Paid, etc. ............ 14
Section 2.10. Computation of Interest........................... 14
Section 2.11. Extension of Interest Payment Period.............. 15
Section 2.12. CUSIP Numbers..................................... 16
ARTICLE III. PARTICULAR COVENANTS OF THE COMPANY ...................... 17
Section 3.1. Payment of Principal, Premium and Interest;
Agreed Treatment of the Debentures................ 17
Section 3.2. Offices for Notices and Payments, etc............. 17
Section 3.3. Appointments to Fill Vacancies in Trustee's Office. 18
Section 3.4. Provision as to Paying Agent...................... 18
Section 3.5. Certificate to Trustee............................ 19
Section 3.6. Additional Sums................................... 19
Section 3.7. Compliance with Consolidation Provisions.......... 19
Section 3.8. Limitation on Dividends........................... 19
Section 3.9. Covenants as to the Trust......................... 20
Section 3.10. Additional Junior Indebtedness.................... 20
ARTICLE IV. SECURITYHOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE.................................... 20
Section 4.1. Securityholders' Lists............................ 20
Section 4.2. Preservation and Disclosure of Lists.............. 20
ARTICLE V. REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS UPON
AN EVENT OF DEFAULT ....................................... 21
Section 5.1. Events of Default................................. 21
Section 5.2. Payment of Debentures on Default; Suit Therefor... 23
Section 5.3. Application of Moneys Collected by Trustee........ 24
Section 5.4. Proceedings by Securityholders.................... 25
Section 5.5. Proceedings by Trustee............................ 25
Section 5.6. Remedies Cumulative and Continuing; Delay or
Omission Not a Waiver............................. 25
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Section 5.7. Direction of Proceedings and Waiver of Defaults
by Majority of Securityholders.................... 26
Section 5.8. Notice of Defaults................................ 26
Section 5.9. Undertaking to Pay Costs.......................... 26
ARTICLE VI. CONCERNING THE TRUSTEE..................................... 27
Section 6.1. Duties and Responsibilities of Trustee............ 27
Section 6.2. Reliance on Documents, Opinions, etc.............. 28
Section 6.3. No Responsibility for Recitals, etc............... 28
Section 6.4. Trustee, Authenticating Agent, Paying Agents,
Transfer Agents or Registrar May Own Debentures... 29
Section 6.5. Moneys to be Held in Trust........................ 29
Section 6.6. Compensation and Expenses of Trustee.............. 29
Section 6.7. Officers' Certificate as Evidence................. 30
Section 6.8. Eligibility of Trustee............................ 30
Section 6.9. Resignation or Removal of Trustee ................ 30
Section 6.10. Acceptance by Successor Trustee. ................. 31
Section 6.11. Succession by Merger, etc. ....................... 32
Section 6.12. Authenticating Agents............................. 32
ARTICLE VII. CONCERNING THE SECURITYHOLDERS............................ 33
Section 7.1. Action by Securityholders......................... 33
Section 7.2. Proof of Execution by Securityholders............. 34
Section 7.3. Who Are Deemed Absolute Owners.................... 34
Section 7.4. Debentures Owned by Company Deemed Not Outstanding 34
Section 7.5. Revocation of Consents; Future Holders Bound...... 34
ARTICLE VIII. SECURITYHOLDERS' MEETINGS................................ 35
Section 8.1. Purposes of Meetings.............................. 35
Section 8.2. Call of Meetings by Trustee....................... 35
Section 8.3. Call of Meetings by Company or Securityholders.... 35
Section 8.4. Qualifications for Voting......................... 35
Section 8.5. Regulations....................................... 36
Section 8.6. Voting............................................ 36
Section 8.7. Quorum; Actions................................... 36
ARTICLE IX. SUPPLEMENTAL INDENTURES.................................... 37
Section 9.1. Supplemental Indentures without Consent of
Securityholders................................... 37
Section 9.2. Supplemental Indentures with Consent of
Securityholders................................... 38
Section 9.3. Effect of Supplemental Indentures................. 39
Section 9.4. Notation on Debentures............................ 39
Section 9.5. Evidence of Compliance of Supplemental Indenture
to be Furnished to Trustee........................ 39
ARTICLE X. REDEMPTION OF SECURITIES ................................... 39
Section 10.1. Optional Redemption............................... 39
Section 10.2. Special Event Redemption.......................... 40
Section 10.3. Notice of Redemption; Selection of Debentures..... 40
Section 10.4. Payment of Debentures Called for Redemption....... 41
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ARTICLE XI. CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE.......... 41
Section 11.1. Company May Consolidate, etc., on Certain Terms... 41
Section 11.2. Successor Entity to be Substituted................ 41
Section 11.3. Opinion of Counsel to be Given to Trustee......... 42
ARTICLE XII. SATISFACTION AND DISCHARGE OF INDENTURE................... 42
Section 12.1. Discharge of Indenture............................ 42
Section 12.2. Deposited Moneys to be Held in Trust by Trustee... 43
Section 12.3. Paying Agent to Repay Moneys Held................. 43
Section 12.4. Return of Unclaimed Moneys........................ 43
ARTICLE XIII. IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS................................... 43
Section 13.1. Indenture and Debentures Solely Corporate
Obligations....................................... 43
ARTICLE XIV. MISCELLANEOUS PROVISIONS.................................. 43
Section 14.1. Successors........................................ 43
Section 14.2. Official Acts by Successor Entity................. 43
Section 14.3. Surrender of Company Powers....................... 44
Section 14.4. Addresses for Notices, etc........................ 44
Section 14.5. Governing Law..................................... 44
Section 14.6. Evidence of Compliance with Conditions Precedent.. 44
Section 14.7. Non-Business Days................................. 44
Section 14.8. Table of Contents, Headings, etc.................. 44
Section 14.9. Execution in Counterparts......................... 45
Section 14.10. Separability...................................... 45
Section 14.11. Assignment........................................ 45
Section 14.12. Acknowledgment of Rights.......................... 45
ARTICLE XV. SUBORDINATION OF DEBENTURES................................ 45
Section 15.1. Agreement to Subordinate.......................... 45
Section 15.2. Default on Senior Indebtedness.................... 46
Section 15.3. Liquidation, Dissolution, Bankruptcy.............. 46
Section 15.4. Subrogation....................................... 47
Section 15.5. Trustee to Effectuate Subordination............... 48
Section 15.6. Notice by the Company............................. 48
Section 15.7. Rights of the Trustee; Holders of Senior
Indebtedness...................................... 48
Section 15.8. Subordination May Not Be Impaired................. 49
Exhibit A Form of Fixed/Floating Rate Junior Subordinated
Deferrable Interest Debenture
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THIS INDENTURE, dated as of June 26, 2003, between
Wesbanco, Inc., a West Virginia corporation (the "Company"), and
U.S. Bank National Association, a national banking association
organized under the laws of the United States of America, as
debenture trustee (the "Trustee").
WITNESSETH:
WHEREAS, for its lawful corporate purposes, the Company has
duly authorized the issuance of its Fixed/Floating Rate Junior
Subordinated Deferrable Interest Debentures due 2033 (the
"Debentures") under this Indenture to provide, among other
things, for the execution and authentication, delivery and
administration thereof, and the Company has duly authorized the
execution of this Indenture; and
WHEREAS, all acts and things necessary to make this
Indenture a valid agreement according to its terms, have been
done and performed;
NOW, THEREFORE, This Indenture Witnesseth:
In consideration of the premises, and the purchase of the
Debentures by the holders thereof, the Company covenants and
agrees with the Trustee for the equal and proportionate benefit
of the respective holders from time to time of the Debentures as
follows:
ARTICLE I.
DEFINITIONS
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Section 1.1. Definitions. The terms defined in this
Section 1.1 (except as herein otherwise expressly provided or
unless the context otherwise requires) for all purposes of this
Indenture and of any indenture supplemental hereto shall have
the respective meanings specified in this Section 1.1. All
accounting terms used herein and not expressly defined shall
have the meanings assigned to such terms in accordance with
generally accepted accounting principles and the term "generally
accepted accounting principles" means such accounting principles
as are generally accepted in the United States at the time of
any computation. The words "herein," "hereof" and "hereunder"
and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision.
"Additional Interest" has the meaning set forth in Section 2.11.
"Additional Junior Indebtedness" means, without duplication
and other than the Debentures, any indebtedness, liabilities or
obligations of the Company, or any Subsidiary of the Company,
under debt securities (or guarantees in respect of debt
securities) initially issued after the date of this Indenture to
any trust, or a trustee of a trust, partnership or other entity
affiliated with the Company that is, directly or indirectly, a
finance subsidiary (as such term is defined in Rule 3a-5 under
the Investment Company Act of 1940) or other financing vehicle
of the Company or any Subsidiary of the Company in connection
with the issuance by that entity of preferred securities or
other securities that are eligible to qualify for Tier 1 capital
treatment (or its then equivalent) for purposes of the capital
adequacy guidelines of the Federal Reserve, as then in effect
and applicable to the Company (or, if the Company is not a bank
holding company, such guidelines applied to the Company as if
the Company were subject to such guidelines); provided, however,
that the inability of the Company to treat all or any portion of
the Additional Junior Indebtedness as Tier 1 capital shall not
disqualify it as Additional Junior Indebtedness if such
inability results from the Company having cumulative preferred
stock, minority interests in consolidated subsidiaries, or any
other class of security or interest which the Federal Reserve
now or may hereafter accord Tier 1 capital treatment (including
the Debentures) in excess of the amount which may qualify for
treatment as Tier 1 capital under applicable capital adequacy
guidelines.
"Additional Sums" has the meaning set forth in Section 3.6.
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"Affiliate" has the same meaning as given to that term in
Rule 405 of the Securities Act or any successor rule thereunder.
"Authenticating Agent" means any agent or agents of the
Trustee which at the time shall be appointed and acting pursuant
to Section 6.12.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar
federal or state law for the relief of debtors.
"Board of Directors" means the board of directors or the
executive committee or any other duly authorized designated
officers of the Company.
"Board Resolution" means a copy of a resolution certified
by the Secretary or an Assistant Secretary of the Company to
have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification and
delivered to the Trustee.
"Business Day" means any day other than a Saturday, Sunday
or any other day on which banking institutions in New York City
or Hartford, Connecticut are permitted or required by any
applicable law to close.
"Capital Securities" means undivided beneficial interests
in the assets of the Trust which rank pari passu with Common
Securities issued by the Trust; provided, however, that upon the
occurrence and continuance of an Event of Default (as defined in
the Declaration), the rights of holders of such Common
Securities to payment in respect of distributions and payments
upon liquidation, redemption and otherwise are subordinated to
the rights of holders of such Capital Securities.
"Capital Securities Guarantee" means the guarantee
agreement that the Company enters into with U.S. Bank National
Association, as guarantee trustee, or other Persons that
operates directly or indirectly for the benefit of holders of
Capital Securities of the Trust.
"Capital Treatment Event" means the receipt by the Company
and the Trust of an opinion of counsel experienced in such
matters to the effect that, as a result of the occurrence of any
amendment to, or change (including any announced prospective
change) in, the laws, rules or regulations of the United States
or any political subdivision thereof or therein, or as the
result of any official or administrative pronouncement or action
or decision interpreting or applying such laws, rules or
regulations, which amendment or change is effective or which
pronouncement, action or decision is announced on or after the
date of original issuance of the Debentures, there is more than
an insubstantial risk that the Company will not, within 90 days
of the date of such opinion, be entitled to treat an amount
equal to the aggregate liquidation amount of the Capital
Securities as "Tier 1 Capital" (or its then equivalent) for
purposes of the capital adequacy guidelines of the Federal
Reserve, as then in effect and applicable to the Company (or if
the Company is not a bank holding company, such guidelines
applied to the Company as if the Company were subject to such
guidelines); provided, however, that the inability of the
Company to treat all or any portion of the liquidation amount of
the Capital Securities as Tier l Capital shall not constitute
the basis for a Capital Treatment Event, if such inability
results from the Company having cumulative preferred stock,
minority interests in consolidated subsidiaries, or any other
class of security or interest which the Federal Reserve or OTS,
as applicable, may now or hereafter accord Tier 1 Capital
treatment in excess of the amount which may now or hereafter
qualify for treatment as Tier 1 Capital under applicable capital
adequacy guidelines; provided further, however, that the
distribution of Debentures in connection with the liquidation of
the Trust shall not in and of itself constitute a Capital
Treatment Event unless such liquidation shall have occurred in
connection with a Tax Event or an Investment Company Event.
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"Certificate" means a certificate signed by any one of the
principal executive officer, the principal financial officer or
the principal accounting officer of the Company.
"Common Securities" means undivided beneficial interests in
the assets of the Trust which rank pari passu with Capital
Securities issued by the Trust; provided, however, that upon the
occurrence and continuance of an Event of Default (as defined in
the Declaration), the rights of holders of such Common
Securities to payment in respect of distributions and payments
upon liquidation, redemption and otherwise are subordinated to
the rights of holders of such Capital Securities.
"Company" means Wesbanco, Inc., a West Virginia
corporation, and, subject to the provisions of Article XI, shall
include its successors and assigns.
"Comparable Treasury Issue" means with respect to any
Special Redemption Date the United States Treasury security
selected by the Quotation Agent as having a maturity comparable
to the Fixed Rate Period Remaining Life that would be utilized,
at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt
securities of comparable maturity to the Fixed Rate Period
Remaining Life. If no United States Treasury security has a
maturity which is within a period from three months before to
three months after June 26, 2008, the two most closely
corresponding fixed, non-callable United States Treasury
securities, as selected by the Quotation Agent, shall be used as
the Comparable Treasury Issue, and the Treasury Rate shall be
interpolated or extrapolated on a straight-line basis, rounding
to the nearest month using such securities.
"Comparable Treasury Price" means (a) the average of five
Reference Treasury Dealer Quotations for such Special Redemption
Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (b) if the Quotation Agent
obtains fewer than five such Reference Treasury Dealer
Quotations, the average of all such Quotations.
"Coupon Rate" has the meaning set forth in Section 2.8.
"Debenture" or "Debentures" has the meaning stated in the
first recital of this Indenture.
"Debenture Register" has the meaning specified in Section 2.5.
"Declaration" means the Amended and Restated Declaration of
Trust of the Trust, as amended or supplemented from time to time.
"Default" means any event, act or condition that with
notice or lapse of time, or both, would constitute an Event of
Default.
"Defaulted Interest" has the meaning set forth in Section 2.8.
"Distribution Period" means the period beginning on (and
including) the date of original issuance and ending on (but
excluding) September 26, 2003 and each successive period
beginning on (and including) September 26, 2003, and each
succeeding Interest Payment Date, and ending on (but excluding)
the next succeeding Interest Payment Date.
"Determination Date" has the meaning set forth in Section 2.10.
"Event of Default" means any event specified in
Section 5.1, continued for the period of time, if any, and after
the giving of the notice, if any, therein designated.
"Extension Period" has the meaning set forth in Section 2.11.
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"Federal Reserve" means the Board of Governors of the
Federal Reserve System and any successor federal agency that is
primarily responsible for regulating the activities of bank
holding companies.
"Fixed Rate Period Remaining Life" means, with respect to
any Debenture, the period from the Special Redemption Date for
such Debenture to June 26, 2008.
"Indenture" means this instrument as originally executed
or, if amended or supplemented as herein provided, as so amended
or supplemented, or both.
"Institutional Trustee" has the meaning set forth in the
Declaration.
"Interest Payment Date" means each March 26, June 26,
September 26 and December 26 during the term of this Indenture.
"Interest Rate" means for the period beginning on (and
including) the date of original issuance and ending on (but
excluding) June 26, 2008 the rate per annum of 5.55% and for
each Distribution Period thereafter, the Coupon Rate.
"Investment Company Event" means the receipt by the Company
and the Trust of an opinion of counsel experienced in such
matters to the effect that, as a result of the occurrence of a
change in law or regulation or written change (including any
announced prospective change) in interpretation or application
of law or regulation by any legislative body, court,
governmental agency or regulatory authority, there is more than
an insubstantial risk that the Trust is or, within 90 days of
the date of such opinion will be considered an "investment
company" that is required to be registered under the Investment
Company Act of 1940, as amended which change or prospective
change becomes effective or would become effective, as the case
may be, on or after the date of the issuance of the Debentures.
"Liquidation Amount" means the stated amount of $1,000.00
per Trust Security.
"Maturity Date" means June 26, 2033.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the Chief Executive Officer, the Vice
Chairman, the President, any Managing Director or any Vice
President, and by the Treasurer, an Assistant Treasurer, the
Comptroller, an Assistant Comptroller, the Secretary or an
Assistant Secretary of the Company, and delivered to the
Trustee. Each such certificate shall include the statements
provided for in Section 14.6 if and to the extent required by
the provisions of such Section.
"Opinion of Counsel" means an opinion in writing signed by
legal counsel, who may be an employee of or counsel to the
Company, or may be other counsel reasonably satisfactory to the
Trustee. Each such opinion shall include the statements
provided for in Section 14.6 if and to the extent required by
the provisions of such Section.
"OTS" means the Office of Thrift Supervision and any
successor federal agency that is primarily responsible for
regulating the activities of savings and loan holding companies.
The term "outstanding," when used with reference to
Debentures, means, subject to the provisions of Section 7.4, as
of any particular time, all Debentures authenticated and
delivered by the Trustee or the Authenticating Agent under this
Indenture, except:
(a) Debentures theretofore canceled by the Trustee or the
Authenticating Agent or delivered to the Trustee for
cancellation;
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(b) Debentures, or portions thereof, for the payment or
redemption of which moneys in the necessary amount shall have
been deposited in trust with the Trustee or with any paying
agent (other than the Company) or shall have been set aside and
segregated in trust by the Company (if the Company shall act as
its own paying agent); provided, however, that, if such
Debentures, or portions thereof, are to be redeemed prior to
maturity thereof, notice of such redemption shall have been
given as provided in Section 10.3 or provision satisfactory to
the Trustee shall have been made for giving such notice; and
(c) Debentures paid pursuant to Section 2.6 or in lieu of
or in substitution for which other Debentures shall have been
authenticated and delivered pursuant to the terms of Section 2.6
unless proof satisfactory to the Company and the Trustee is
presented that any such Debentures are held by bona fide holders
in due course.
"Person" means any individual, corporation, limited
liability company, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Predecessor Security" of any particular Debenture means
every previous Debenture evidencing all or a portion of the same
debt as that evidenced by such particular Debenture; and, for
purposes of this definition, any Debenture authenticated and
delivered under Section 2.6 in lieu of a lost, destroyed or
stolen Debenture shall be deemed to evidence the same debt as
the lost, destroyed or stolen Debenture.
"Primary Treasury Dealer" means either a nationally
recognized primary United States Government securities dealer or
an entity of recognized standing in matters pertaining to the
quotation of treasury securities that is reasonably acceptable
to the Company and the Trustee.
"Principal Office of the Trustee," or other similar term,
means the office of the Trustee, at which at any particular time
its corporate trust business shall be principally administered,
which at the time of the execution of this Indenture shall be
225 Asylum Street, Goodwin Square, Hartford, Connecticut 06103.
"Quotation Agent" means U.S. Bank National Association, or
its designee, and its successors; provided, however, that if the
foregoing shall cease to be a Primary Treasury Dealer, the
Company shall substitute therefor another Primary Treasury
Dealer.
"Redemption Date" has the meaning set forth in Section 10.1.
"Redemption Price" means 100% of the principal amount of
the Debentures being redeemed, plus accrued and unpaid interest
(including any Additional Interest) on such Debentures to the
Redemption Date.
"Reference Treasury Dealer" means (i) the Quotation Agent
and (ii) any other Primary Treasury Dealer selected by the
Trustee after consultation with the Company.
"Reference Treasury Dealer Quotations" means, with respect
to each Reference Treasury Dealer and any Redemption Date, the
average, as determined by the Quotation Agent, of the bid and
asked prices for the Comparable Treasury Issue (expressed in
each case as a percentage of its principal amount) quoted in
writing to the Quotation Agent by such Reference Treasury Dealer
at 5:00 p.m., New York City time, on the third Business Day
preceding such Redemption Date.
"Responsible Officer" means, with respect to the Trustee,
any officer within the Principal Office of the Trustee,
including any vice-president, any assistant vice-president, any
secretary, any assistant secretary, the treasurer, any assistant
treasurer, any trust officer or other officer of the Principal
Trust
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Office of the Trustee customarily performing functions
similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred
because of that officer's knowledge of and familiarity with the
particular subject.
"Securities Act" means the Securities Act of 1933, as
amended from time to time or any successor legislation.
"Securityholder," "holder of Debentures," or other similar
terms, means any Person in whose name at the time a particular
Debenture is registered on the register kept by the Company or
the Trustee for that purpose in accordance with the terms
hereof.
"Senior Indebtedness" means, with respect to the Company,
(i) the principal, premium, if any, and interest in respect of
(A) indebtedness of the Company for money borrowed and
(B) indebtedness evidenced by securities, debentures, notes,
bonds or other similar instruments issued by the Company;
(ii) all capital lease obligations of the Company; (iii) all
obligations of the Company issued or assumed as the deferred
purchase price of property, all conditional sale obligations of
the Company and all obligations of the Company under any title
retention agreement; (iv) all obligations of the Company for the
reimbursement of any letter of credit, any banker's acceptance,
any security purchase facility, any repurchase agreement or
similar arrangement, any interest rate swap, any other hedging
arrangement, any obligation under options or any similar credit
or other transaction; (v) all obligations of the type referred
to in clauses (i) through (iv) above of other Persons for the
payment of which the Company is responsible or liable as
obligor, guarantor or otherwise; and (vi) all obligations of the
type referred to in clauses (i) through (v) above of other
Persons secured by any lien on any property or asset of the
Company (whether or not such obligation is assumed by the
Company), whether incurred on or prior to the date of this
Indenture or thereafter incurred. Notwithstanding the
foregoing, "Senior Indebtedness" shall not include (1) any
Additional Junior Indebtedness, (2) Debentures issued pursuant
to this Indenture and guarantees in respect of such Debentures,
(3) trade accounts payable of the Company arising in the
ordinary course of business (such trade accounts payable being
pari passu in right of payment to the Debentures), or (4)
obligations with respect to which (a) in the instrument creating
or evidencing the same or pursuant to which the same is
outstanding, it is provided that such obligations are pari
passu, junior or otherwise not superior in right of payment to
the Debentures and (b) the Company, prior to the issuance
thereof, has notified (and, if then required under the
applicable guidelines of the regulating entity, has received
approval from) the Federal Reserve (if the Company is a bank
holding company) or the OTS (if the Company is a savings and
loan holding company). Senior Indebtedness shall continue to be
Senior Indebtedness and be entitled to the subordination
provisions irrespective of any amendment, modification or waiver
of any term of such Senior Indebtedness.
"Special Event" means any of a Capital Treatment Event, an
Investment Company Event or a Tax Event.
"Special Redemption Date" has the meaning set forth in
Section 10.2.
"Special Redemption Price" means (a) if the Special
Redemption Date occurs before June 26, 2008, the greater of
(i) 107.5% of the principal amount of the Debentures, plus
accrued and unpaid interest (including Additional Interest) on
the Debentures to the Special Redemption Date, or (ii) as
determined by the Quotation Agent, (A) the sum of the present
values of the scheduled payments of principal and interest on
the Debentures during the Fixed Rate Period Remaining Life of
the Debentures (assuming the Debentures matured on June 26,
2008) discounted to the Special Redemption Date on a quarterly
basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate, plus (B) accrued and unpaid
interest (including Additional Interest) on the Debentures to
such Special Redemption Date, or (b) if the Special Redemption
Date occurs on or after June 26, 2008, 100% of the
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principal amount of the Debentures being redeemed, plus accrued and
unpaid interest (including any Additional Interest) on such Debentures
to the Special Redemption Date.
"Subsidiary" means with respect to any Person, (i) any
corporation at least a majority of the outstanding voting stock
of which is owned, directly or indirectly, by such Person or by
one or more of its Subsidiaries, or by such Person and one or
more of its Subsidiaries, (ii) any general partnership, joint
venture or similar entity, at least a majority of the
outstanding partnership or similar interests of which shall at
the time be owned by such Person, or by one or more of its
Subsidiaries, or by such Person and one or more of its
Subsidiaries and (iii) any limited partnership of which such
Person or any of its Subsidiaries is a general partner. For the
purposes of this definition, "voting stock" means shares,
interests, participations or other equivalents in the equity
interest (however designated) in such Person having ordinary
voting power for the election of a majority of the directors (or
the equivalent) of such Person, other than shares, interests,
participations or other equivalents having such power only by
reason of the occurrence of a contingency.
"Tax Event" means the receipt by the Company and the Trust
of an opinion of counsel experienced in such matters to the
effect that, as a result of any amendment to or change
(including any announced prospective change) in the laws or any
regulations thereunder of the United States or any political
subdivision or taxing authority thereof or therein, or as a
result of any official administrative pronouncement (including
any private letter ruling, technical advice memorandum, field
service advice, regulatory procedure, notice or announcement,
including any notice or announcement of intent to adopt such
procedures or regulations) (an "Administrative Action") or
judicial decision interpreting or applying such laws or
regulations, regardless of whether such Administrative Action or
judicial decision is issued to or in connection with a
proceeding involving the Company or the Trust and whether or not
subject to review or appeal, which amendment, clarification,
change, Administrative Action or decision is enacted,
promulgated or announced, in each case on or after the date of
original issuance of the Debentures, there is more than an
insubstantial risk that: (i) the Trust is, or will be within
90 days of the date of such opinion, subject to United States
federal income tax with respect to income received or accrued on
the Debentures; (ii) interest payable by the Company on the
Debentures is not, or within 90 days of the date of such
opinion, will not be, deductible by the Company, in whole or in
part, for United States federal income tax purposes; or
(iii) the Trust is, or will be within 90 days of the date of
such opinion, subject to more than a de minimis amount of other
taxes, duties or other governmental charges.
"3-Month LIBOR" has the meaning set forth in Section 2.10.
"Telerate Page 3750" has the meaning set forth in Section 2.10.
"Treasury Rate" means (i) the yield, under the heading
which represents the average for the week immediately prior to
the date of calculation, appearing in the most recently
published statistical release designated H.15 (519) or any
successor publication which is published weekly by the Federal
Reserve and which establishes yields on actively traded United
States Treasury securities adjusted to constant maturity under
the caption "Treasury Constant Maturities," for the maturity
corresponding to the Fixed Rate Period Remaining Life (if no
maturity is within three months before or after the Fixed Rate
Period Remaining Life, yields for the two published maturities
most closely corresponding to the Fixed Rate Period Remaining
Life shall be determined and the Treasury Rate shall be
interpolated or extrapolated from such yields on a straight-line
basis, rounding to the nearest month) or (ii) if such release
(or any successor release) is not published during the week
preceding the calculation date or does not contain such yields,
the rate per annum equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, calculated using a
price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable
Treasury Price for such Special Redemption Date. The
7
Treasury Rate shall be calculated by the Quotation Agent on the
third Business Day preceding the Special Redemption Date.
"Trust" shall mean Wesbanco, Inc. Capital Statutory
Trust III, a Connecticut statutory trust, or any other similar
trust created for the purpose of issuing Capital Securities in
connection with the issuance of Debentures under this Indenture,
of which the Company is the sponsor.
"Trust Securities" means Common Securities and Capital
Securities of the Trust.
"Trustee" means U.S. Bank National Association, and,
subject to the provisions of Article VI hereof, shall also
include its successors and assigns as Trustee hereunder.
ARTICLE II.
DEBENTURES
----------
Section 2.1. Authentication and Dating. Upon the
execution and delivery of this Indenture, or from time to time
thereafter, Debentures in an aggregate principal amount not in
excess of $17,526,000.00 may be executed and delivered by the
Company to the Trustee for authentication, and the Trustee shall
thereupon authenticate and make available for delivery said
Debentures to or upon the written order of the Company, signed
by its Chairman of the Board of Directors, Chief Executive
Officer, Vice Chairman, the President, one of its Managing
Directors or one of its Vice Presidents without any further
action by the Company hereunder. In authenticating such
Debentures, and accepting the additional responsibilities under
this Indenture in relation to such Debentures, the Trustee shall
be entitled to receive, and (subject to Section 6.1) shall be
fully protected in relying upon:
(a) a copy of any Board Resolution or Board Resolutions
relating thereto and, if applicable, an appropriate record of
any action taken pursuant to such resolution, in each case
certified by the Secretary or an Assistant Secretary of the
Company, as the case may be; and
(b) an Opinion of Counsel prepared in accordance with
Section 14.6 which shall also state:
(1) that such Debentures, when authenticated and
delivered by the Trustee and issued by the Company in
each case 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 or limited by applicable bankruptcy,
insolvency, reorganization, conservatorship,
receivership, moratorium and other statutory or
decisional laws relating to or affecting creditors'
rights or the reorganization of financial institutions
(including, without limitation, preference and
fraudulent conveyance or transfer laws), heretofore or
hereafter enacted or in effect, affecting the rights
of creditors generally; and
(2) that all laws and requirements in respect of
the execution and delivery by the Company of the
Debentures have been complied with and that
authentication and delivery of the Debentures by the
Trustee will not violate the terms of this Indenture.
The Trustee shall have the right to decline to authenticate
and deliver any Debentures under this Section if the Trustee,
being advised in writing by counsel, determines that such action
may not lawfully be taken or if a Responsible Officer of the
Trustee in good faith shall determine that such action would
expose the Trustee to personal liability to existing holders.
8
The definitive Debentures shall be typed, printed,
lithographed or engraved on steel engraved borders or may be
produced in any other manner, all as determined by the officers
executing such Debentures, as evidenced by their execution of
such Debentures.
Section 2.2. Form of Trustee's Certificate of
Authentication. The Trustee's certificate of authentication on
all Debentures shall be in substantially the following form:
This is one of the Debentures referred to in the within-
mentioned Indenture.
U.S. Bank National Association, as Trustee
By
--------------------------------
Authorized Signer
Section 2.3. Form and Denomination of Debentures. The
Debentures shall be substantially in the form of Exhibit A
attached hereto. The Debentures shall be in registered,
certificated form without coupons and in minimum denominations
of $100,000.00 and any multiple of $1,000.00 in excess thereof.
Any attempted transfer of the Debentures in a block having an
aggregate principal amount of less than $100,000.00 shall be
deemed to be void and of no legal effect whatsoever. Any such
purported transferee shall be deemed not to be a holder of such
Debentures for any purpose, including, but not limited to the
receipt of payments on such Debentures, and such purported
transferee shall be deemed to have no interest whatsoever in
such Debentures. The Debentures shall be numbered, lettered, or
otherwise distinguished in such manner or in accordance with
such plans as the officers executing the same may determine with
the approval of the Trustee as evidenced by the execution and
authentication thereof.
Section 2.4. Execution of Debentures. The Debentures
shall be signed in the name and on behalf of the Company by the
manual or facsimile signature of its Chairman of the Board of
Directors, Chief Executive Officer, Vice Chairman, President,
one of its Managing Directors or one of its Executive Vice
Presidents, Senior Vice Presidents or Vice Presidents. Only
such Debentures as shall bear thereon a certificate of
authentication substantially in the form herein before recited,
executed by the Trustee or the Authenticating Agent by the
manual signature of an authorized signer, shall be entitled to
the benefits of this Indenture or be valid or obligatory for any
purpose. Such certificate by the Trustee or the Authenticating
Agent upon any Debenture executed by the Company shall be
conclusive evidence that the Debenture so authenticated has been
duly authenticated and delivered hereunder and that the holder
is entitled to the benefits of this Indenture.
In case any officer of the Company who shall have signed
any of the Debentures shall cease to be such officer before the
Debentures so signed shall have been authenticated and delivered
by the Trustee or the Authenticating Agent, or disposed of by
the Company, such Debentures nevertheless may be authenticated
and delivered or disposed of as though the Person who signed
such Debentures had not ceased to be such officer of the
Company; and any Debenture may be signed on behalf of the
Company by such Persons as, at the actual date of the execution
of such Debenture, shall be the proper officers of the Company,
although at the date of the execution of this Indenture any such
person was not such an officer.
Every Debenture shall be dated the date of its
authentication.
Section 2.5. Exchange and Registration of Transfer of
Debentures. The Company shall cause to be kept, at the office
or agency maintained for the purpose of registration of transfer
and for exchange as provided in Section 3.2, a register (the
"Debenture Register") for the Debentures issued hereunder in
which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration and
transfer of all Debentures as in this Article II provided. The
Debenture Register
9
shall be in written form or in any other form capable of being
converted into written form within a reasonable time.
Debentures to be exchanged may be surrendered at the
Principal Office of the Trustee or at any office or agency to be
maintained by the Company for such purpose as provided in
Section 3.2, and the Company shall execute, the Company or the
Trustee shall register and the Trustee or the Authenticating
Agent shall authenticate and make available for delivery in
exchange therefor the Debenture or Debentures which the
Securityholder making the exchange shall be entitled to receive.
Upon due presentment for registration of transfer of any
Debenture at the Principal Office of the Trustee or at any
office or agency of the Company maintained for such purpose as
provided in Section 3.2, the Company shall execute, the Company
or the Trustee shall register and the Trustee or the
Authenticating Agent shall authenticate and make available for
delivery in the name of the transferee or transferees a new
Debenture for a like aggregate principal amount. Registration
or registration of transfer of any Debenture by the Trustee or
by any agent of the Company appointed pursuant to Section 3.2,
and delivery of such Debenture, shall be deemed to complete the
registration or registration of transfer of such Debenture.
All Debentures presented for registration of transfer or
for exchange or payment shall (if so required by the Company or
the Trustee or the Authenticating Agent) be duly endorsed by, or
be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company and the Trustee or
the Authenticating Agent duly executed by the holder or his
attorney duly authorized in writing.
No service charge shall be made for any exchange or
registration of transfer of Debentures, but the Company or the
Trustee may require payment of a sum sufficient to cover any
tax, fee or other governmental charge that may be imposed in
connection therewith.
The Company or the Trustee shall not be required to
exchange or register a transfer of any Debenture for a period of
15 days next preceding the date of selection of Debentures for
redemption.
Notwithstanding anything herein to the contrary, Debentures
may not be transferred except in compliance with the restricted
securities legend set forth below, unless otherwise determined
by the Company, upon the advice of counsel expert in securities
law, in accordance with applicable law:
THIS SECURITY IS NOT A SAVINGS ACCOUNT OR DEPOSIT AND IT IS
NOT INSURED BY THE UNITED STATES OR ANY AGENCY OR FUND OF THE
UNITED STATES, INCLUDING THE FEDERAL DEPOSIT INSURANCE
CORPORATION.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), ANY STATE
SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAW. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAWS. THE HOLDER OF THIS SECURITY
BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER THIS SECURITY ONLY (A) TO THE COMPANY, (B) PURSUANT TO
A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT, (C) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A SO LONG AS THIS SECURITY
IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A IN ACCORDANCE WITH
RULE 144A, (D) TO A NON-U.S. PERSON IN AN OFFSHORE TRANSACTION
IN ACCORDANCE WITH
10
RULE 903 OR RULE 904 (AS APPLICABLE) OF
REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A) OF
RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS
SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND
NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT
TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO IT IN ACCORDANCE WITH THE INDENTURE,
A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO
AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE
BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR
ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (EACH
A "PLAN"), OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN
ASSETS" BY REASON OF ANY PLAN'S INVESTMENT IN THE ENTITY, AND NO
PERSON INVESTING "PLAN ASSETS" OF ANY PLAN MAY ACQUIRE OR HOLD
THE SECURITIES OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR
HOLDER IS ELIGIBLE FOR EXEMPTIVE RELIEF AVAILABLE UNDER U.S.
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION
96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE
EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY IS NOT
PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE
WITH RESPECT TO SUCH PURCHASE OR HOLDING. ANY PURCHASER OR
HOLDER OF THE SECURITIES OR ANY INTEREST THEREIN WILL BE DEEMED
TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT
EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING
OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE
CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF
OF AN EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR
ENTITY USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO
FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE WILL NOT RESULT IN
A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR
SECTION 4975 OF THE CODE FOR WHICH THERE IS NO APPLICABLE
STATUTORY OR ADMINISTRATIVE EXEMPTION.
THIS SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN
BLOCKS HAVING AN AGGREGATE PRINCIPAL AMOUNT OF NOT LESS THAN
$100,000.00 AND MULTIPLES OF $1,000.00 IN EXCESS THEREOF. ANY
ATTEMPTED TRANSFER OF THIS SECURITY IN A BLOCK HAVING AN
AGGREGATE PRINCIPAL AMOUNT OF LESS THAN $100,000.00 SHALL BE
DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER.
THE HOLDER OF THIS SECURITY AGREES THAT IT WILL COMPLY WITH
THE FOREGOING RESTRICTIONS.
Section 2.6. Mutilated, Destroyed, Lost or Stolen
Debentures. In case any Debenture shall become mutilated or be
destroyed, lost or stolen, the Company shall execute, and upon
its written request the Trustee shall authenticate and deliver,
a new Debenture bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated
Debenture, or in lieu of and in substitution for the Debenture
so destroyed, lost or stolen. In every case the applicant for a
substituted Debenture shall
11
furnish to the Company and the Trustee such security or indemnity
as may be required by them to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also
furnish to the Company and the Trustee evidence to their satisfaction
of the destruction, loss or theft of such Debenture and of the
ownership thereof.
The Trustee may authenticate any such substituted Debenture
and deliver the same upon the written request or authorization
of any officer of the Company. Upon the issuance of any
substituted Debenture, the Company may require the payment of a
sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses
connected therewith. In case any Debenture which has matured or
is about to mature or has been called for redemption in full
shall become mutilated or be destroyed, lost or stolen, the
Company may, instead of issuing a substitute Debenture, pay or
authorize the payment of the same (without surrender thereof
except in the case of a mutilated Debenture) if the applicant
for such payment shall furnish to the Company and the Trustee
such security or indemnity as may be required by them to save
each of them harmless and, in case of destruction, loss or
theft, evidence satisfactory to the Company and to the Trustee
of the destruction, loss or theft of such Debenture and of the
ownership thereof.
Every substituted Debenture issued pursuant to the
provisions of this Section 2.6 by virtue of the fact that any
such Debenture is destroyed, lost or stolen shall constitute an
additional contractual obligation of the Company, whether or not
the destroyed, lost or stolen Debenture shall be found at any
time, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other
Debentures duly issued hereunder. All Debentures shall be held
and owned upon the express condition that, to the extent
permitted by applicable law, the foregoing provisions are
exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Debentures and shall
preclude any and all other rights or remedies notwithstanding
any law or statute existing or hereafter enacted to the contrary
with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
Section 2.7. Temporary Debentures. Pending the
preparation of definitive Debentures, the Company may execute
and the Trustee shall authenticate and make available for
delivery temporary Debentures that are typed, printed or
lithographed. Temporary Debentures shall be issuable in any
authorized denomination, and substantially in the form of the
definitive Debentures in lieu of which they are issued but with
such omissions, insertions and variations as may be appropriate
for temporary Debentures, all as may be determined by the
Company. Every such temporary Debenture shall be executed by
the Company and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with the
same effect, as the definitive Debentures. Without unreasonable
delay the Company will execute and deliver to the Trustee or the
Authenticating Agent definitive Debentures and thereupon any or
all temporary Debentures may be surrendered in exchange
therefor, at the principal corporate trust office of the Trustee
or at any office or agency maintained by the Company for such
purpose as provided in Section 3.2, and the Trustee or the
Authenticating Agent shall authenticate and make available for
delivery in exchange for such temporary Debentures a like
aggregate principal amount of such definitive Debentures. Such
exchange shall be made by the Company at its own expense and
without any charge therefor except that in case of any such
exchange involving a registration of transfer the Company may
require payment of a sum sufficient to cover any tax, fee or
other governmental charge that may be imposed in relation
thereto. Until so exchanged, the temporary Debentures shall in
all respects be entitled to the same benefits under this
Indenture as definitive Debentures authenticated and delivered
hereunder.
Section 2.8. Payment of Interest and Additional
Interest. Interest at the Interest Rate and any Additional
Interest on any Debenture that is payable, and is punctually
paid or duly provided for, on any Interest Payment Date for
Debentures shall be paid to the Person in whose name said
Debenture (or
12
one or more Predecessor Securities) is registered
at the close of business on the regular record date for such
interest installment except that interest and any Additional
Interest payable on the Maturity Date shall be paid to the
Person to whom principal is paid.
Each Debenture shall bear interest for the period beginning
on (and including) the date of original issuance and ending on
(but excluding) June 26, 2008 at a rate per annum of 5.55%, and
shall bear interest for each successive Distribution Period
beginning on (and including) June 26, 2008, and each succeeding
Interest Payment Date, and ending on (but excluding) the next
succeeding Interest Payment Date at a rate per annum equal to
the 3-Month LIBOR, determined as described in Section 2.10, plus
3.10% (the "Coupon Rate"), applied to the principal amount
thereof, until the principal thereof becomes due and payable,
and on any overdue principal and to the extent that payment of
such interest is enforceable under applicable law (without
duplication) on any overdue installment of interest (including
Additional Interest) at the Interest Rate in effect for each
applicable period compounded quarterly. Interest shall be
payable (subject to any relevant Extension Period) quarterly in
arrears on each Interest Payment Date with the first installment
of interest to be paid on September 26, 2003.
Any interest on any Debenture, including Additional
Interest, that is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the
registered holder on the relevant regular record date by virtue
of having been such holder; and such Defaulted Interest shall be
paid by the Company to the Persons in whose names such
Debentures (or their respective Predecessor Securities) are
registered at the close of business on a special record date for
the payment of such Defaulted Interest, which shall be fixed in
the following manner: the Company shall notify the Trustee in
writing at least 25 days prior to the date of the proposed
payment of the amount of Defaulted Interest proposed to be paid
on each such Debenture and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior
to the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided. Thereupon
the Trustee shall fix a special record date for the payment of
such Defaulted Interest which shall not be more than 15 nor less
than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice
of the proposed payment. The Trustee shall promptly notify the
Company of such special record date and, in the name and at the
expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the special record date
therefor to be mailed, first class postage prepaid, to each
Securityholder at its address as it appears in the Debenture
Register, not less than 10 days prior to such special record
date. Notice of the proposed payment of such Defaulted Interest
and the special record date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons
in whose names such Debentures (or their respective Predecessor
Securities) are registered on such special record date and shall
be no longer payable.
The Company may make payment of any Defaulted Interest on
any Debentures in any other lawful manner after notice given by
the Company to the Trustee of the proposed payment method;
provided, however, the Trustee in its sole discretion deems such
payment method to be practical.
Any interest (including Additional Interest) scheduled to
become payable on an Interest Payment Date occurring during an
Extension Period shall not be Defaulted Interest and shall be
payable on such other date as may be specified in the terms of
such Debentures.
The term "regular record date" as used in this Section
shall mean the close of business on the 15th calendar day next
preceding the applicable Interest Payment Date.
13
Subject to the foregoing provisions of this Section, each
Debenture delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Debenture
shall carry the rights to interest accrued and unpaid, and to
accrue, that were carried by such other Debenture.
Section 2.9. Cancellation of Debentures Paid, etc. All
Debentures surrendered for the purpose of payment, redemption,
exchange or registration of transfer, shall, if surrendered to
the Company or any paying agent, be surrendered to the Trustee
and promptly canceled by it, or, if surrendered to the Trustee
or any Authenticating Agent, shall be promptly canceled by it,
and no Debentures shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture.
All Debentures canceled by any Authenticating Agent shall be
delivered to the Trustee. The Trustee shall destroy all
canceled Debentures unless the Company otherwise directs the
Trustee in writing. If the Company shall acquire any of the
Debentures, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by
such Debentures unless and until the same are surrendered to the
Trustee for cancellation.
Section 2.10. Computation of Interest. The amount of
interest payable (i) for any Distribution Period commencing on
or after the date of original issuance but before June 26, 2008
will be computed on the basis of a 360-day year of twelve 30-day
months, and (ii) for the Distribution Period commencing on
June 26, 2008 and each succeeding Distribution Period will be
calculated by applying the Interest Rate to the principal amount
outstanding at the commencement of the Distribution Period and
multiplying each such amount by the actual number of days in the
Distribution Period concerned divided by 360. In the event that
any date on which interest is payable on the Debentures is not a
Business Day, then payment of interest payable on such date
shall be made on the next succeeding day which is a Business Day
(and without any interest or other payment in respect of any
such delay), except that, if such Business Day is 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 date such payment was
originally payable. All percentages resulting from any
calculations on the Debentures will be rounded, if necessary, to
the nearest one hundred-thousandth of a percentage point, with
five one-millionths of a percentage point rounded upward (e.g.,
9.876545% (or .09876545) being rounded to 9.87655% (or
..0987655), and all dollar amounts used in or resulting from such
calculation will be rounded to the nearest cent (with one-half
cent being rounded upward)).
(a) "3-Month LIBOR" means the London interbank offered
interest rate for three-month, U.S. dollar deposits determined
by the Trustee in the following order of priority:
(1) the rate (expressed as a percentage per annum)
for U.S. dollar deposits having a three-month maturity that
appears on Telerate Page 3750 as of 11:00 a.m. (London
time) on the related Determination Date (as defined below).
"Telerate Page 3750" means the display designated as
"Page 3750" on the Dow Jones Telerate Service or such other
page as may replace Page 3750 on that service or such other
service or services as may be nominated by the British
Bankers' Association as the information vendor for the
purpose of displaying London interbank offered rates for
U.S. dollar deposits;
(2) if such rate cannot be identified on the related
Determination Date, the Trustee will request the principal
London offices of four leading banks in the London
interbank market to provide such banks' offered quotations
(expressed as percentages per annum) to prime banks in the
London interbank market for U.S. dollar deposits having a
three-month maturity as of 11:00 a.m. (London time) on such
Determination Date. If at least two quotations are
provided, 3-Month LIBOR will be the arithmetic mean of such
quotations;
(3) if fewer than two such quotations are provided as
requested in clause (2) above, the Trustee will request
four major New York City banks to provide such banks' offered
14
quotations (expressed as percentages per annum) to
leading European banks for loans in U.S. dollars as of
11:00 a.m. (London time) on such Determination Date. If at
least two such quotations are provided, 3-Month LIBOR will
be the arithmetic mean of such quotations; and
(4) if fewer than two such quotations are provided as
requested in clause (3) above, 3-Month LIBOR will be a
3-Month LIBOR determined with respect to the Distribution
Period immediately preceding such current Distribution
Period.
If the rate for U.S. dollar deposits having a three-month
maturity that initially appears on Telerate Page 3750 as of
11:00 a.m. (London time) on the related Determination Date is
superseded on the Telerate Page 3750 by a corrected rate by
12:00 noon (London time) on such Determination Date, then the
corrected rate as so substituted on the applicable page will be
the applicable 3-Month LIBOR for such Determination Date.
(b) The Interest Rate for any Distribution Period will at
no time be higher than the maximum rate then permitted by New
York law as the same may be modified by United States law.
(c) "Determination Date" means the date that is two London
Banking Days (i.e., a business day in which dealings in deposits
in U.S. dollars are transacted in the London interbank market)
preceding the particular Distribution Period for which a Coupon
Rate is being determined.
(d) The Trustee shall notify the Company, the
Institutional Trustee and any securities exchange or interdealer
quotation system on which the Capital Securities are listed, of
the Coupon Rate and the Determination Date for each Distribution
Period, in each case as soon as practicable after the
determination thereof but in no event later than the thirtieth
(30th) day of the relevant Distribution Period. Failure to
notify the Company, the Institutional Trustee or any securities
exchange or interdealer quotation system, or any defect in said
notice, shall not affect the obligation of the Company to make
payment on the Debentures at the applicable Coupon Rate. Any
error in the calculation of the Coupon Rate by the Trustee may
be corrected at any time by notice delivered as above provided.
Upon the request of a holder of a Debenture, the Trustee shall
provide the Coupon Rate then in effect and, if determined, the
Coupon Rate for the next Distribution Period.
(e) Subject to the corrective rights set forth above, all
certificates, communications, opinions, determinations,
calculations, quotations and decisions given, expressed, made or
obtained for the purposes of the provisions relating to the
payment and calculation of interest on the Debentures and
distributions on the Capital Securities by the Trustee or the
Institutional Trustee will (in the absence of willful default,
bad faith and manifest error) be final, conclusive and binding
on the Trust, the Company and all of the holders of the
Debentures and the Capital Securities, and no liability shall
(in the absence of willful default, bad faith or manifest error)
attach to the Trustee or the Institutional Trustee in connection
with the exercise or non-exercise by either of them or their
respective powers, duties and discretion.
Section 2.11. Extension of Interest Payment Period. So
long as no Event of Default has occurred and is continuing, the
Company shall have the right, from time to time, and without
causing an Event of Default, to defer payments of interest on
the Debentures by extending the interest payment period on the
Debentures at any time and from time to time during the term of
the Debentures, for up to 20 consecutive quarterly periods (each
such extended interest payment period, an "Extension Period"),
during which Extension Period no interest (including Additional
Interest) shall be due and payable (except any Additional Sums
that may be due and payable). No Extension Period may end on a
date other than an Interest Payment Date. During an Extension
Period, interest will continue to accrue on the Debentures, and
interest on such accrued interest will accrue at an annual rate
equal to the Interest Rate in effect for such Extension Period,
compounded quarterly from the date such interest would have been
payable were it not for the Extension Period, to the extent
permitted by law (such interest referred to
15
herein as "Additional Interest"). At the end of any such Extension
Period the Company shall pay all interest then accrued and unpaid on
the Debentures (together with Additional Interest thereon);
provided, however, that no Extension Period may extend beyond
the Maturity Date; provided further, however, that during any
such Extension Period, the Company shall not and shall not
permit any Affiliate to (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 or
such Affiliate's capital stock (other than payments of dividends
or distributions to the Company) or make any guarantee payments
with respect to the foregoing or (ii) make any payment of
principal of or interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Company or any
Affiliate that rank pari passu in all respects with or junior in
interest to the Debentures (other than, with respect to clauses
(i) or (ii) above, (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 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 any 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 stockholders' rights plan, or the
issuance of rights, stock or other property under any
stockholders' rights plan, or the redemption or repurchase of
rights pursuant thereto, (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 and
any cash payments in lieu of fractional shares issued in
connection therewith, or (f) payments under the Capital
Securities Guarantee). Prior to the termination of any
Extension Period, the Company may further extend such period,
provided that such period together with all such previous and
further consecutive extensions thereof shall not exceed
20 consecutive quarterly periods, or extend beyond the Maturity
Date. Upon the termination of any Extension Period and upon the
payment of all accrued and unpaid interest and Additional
Interest, the Company may commence a new Extension Period,
subject to the foregoing requirements. No interest or
Additional 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 permitted by applicable law. The Company must give the
Trustee notice of its election to begin or extend an Extension
Period at least 5 Business Days prior to the regular record date
(as such term is used in Section 2.8) immediately preceding the
Interest Payment Date with respect to which interest on the
Debentures would have been payable except for the election to
begin or extend such Extension Period. The Trustee shall give
notice of the Company's election to begin a new Extension Period
to the Securityholders.
Section 2.12. CUSIP Numbers. The Company in issuing the
Debentures may use "CUSIP" numbers (if then generally in use),
and, if so, the Trustee shall use CUSIP numbers in notices of
redemption as a convenience to Securityholders; provided,
however, that any such notice may state that no representation
is made as to the correctness of such numbers either as printed
on the Debentures or as contained in any notice of a redemption
and that reliance may be placed only on the other identification
numbers printed on the Debentures, and any such redemption shall
not be affected by any defect in or omission of such numbers.
The Company will promptly notify the Trustee in writing of any
change in the CUSIP numbers.
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ARTICLE III.
PARTICULAR COVENANTS OF THE COMPANY
-----------------------------------
Section 3.1. Payment of Principal, Premium and Interest;
Agreed Treatment of the Debentures.
(a) The Company covenants and agrees that it will duly and
punctually pay or cause to be paid the principal of and premium,
if any, and interest and any Additional Interest and other
payments on the Debentures at the place, at the respective times
and in the manner provided in this Indenture and the Debentures.
Each installment of interest on the Debentures may be paid
(i) by mailing checks for such interest payable to the order of
the holders of Debentures entitled thereto as they appear on the
registry books of the Company if a request for a wire transfer
has not been received by the Company or (ii) by wire transfer to
any account with a banking institution located in the United
States designated in writing by such Person to the paying agent
no later than the related record date. Notwithstanding the
foregoing, so long as the holder of this Debenture is the
Institutional Trustee, the payment of the principal of and
interest on this Debenture will be made in immediately available
funds at such place and to such account as may be designated by
the Institutional Trustee.
(b) The Company will treat the Debentures as indebtedness,
and the amounts payable in respect of the principal amount of
such Debentures as interest, for all United States federal
income tax purposes. All payments in respect of such Debentures
will be made free and clear of United States withholding tax to
any beneficial owner thereof that has provided an Internal
Revenue Service Form W8 BEN (or any substitute or successor
form) establishing its non-United States status for United
States federal income tax purposes.
(c) As of the date of this Indenture, the Company has no
present intention to exercise its right under Section 2.11 to
defer payments of interest on the Debentures by commencing an
Extension Period.
(d) As of the date of this Indenture, the Company believes
that the likelihood that it would exercise its right under
Section 2.11 to defer payments of interest on the Debentures by
commencing an Extension Period at any time during which the
Debentures are outstanding is remote because of the restrictions
that would be imposed on the Company's ability to declare or pay
dividends or distributions on, or to redeem, purchase or make a
liquidation payment with respect to, any of its outstanding
equity and on the Company's ability to make any payments of
principal of or interest on, or repurchase or redeem, any of its
debt securities that rank pari passu in all respects with (or
junior in interest to) the Debentures.
Section 3.2. Offices for Notices and Payments, etc. So
long as any of the Debentures remain outstanding, the Company
will maintain in Hartford, Connecticut, an office or agency
where the Debentures may be presented for payment, an office or
agency where the Debentures may be presented for registration of
transfer and for exchange as in this Indenture provided and an
office or agency where notices and demands to or upon the
Company in respect of the Debentures or of this Indenture may be
served. The Company will give to the Trustee written notice of
the location of any such office or agency and of any change of
location thereof. Until otherwise designated from time to time
by the Company in a notice to the Trustee, or specified as
contemplated by Section 2.5, such office or agency for all of
the above purposes shall be the office or agency of the Trustee.
In case the Company shall fail to maintain any such office or
agency in Hartford, Connecticut, or shall fail to give such
notice of the location or of any change in the location thereof,
presentations and demands may be made and notices may be served
at the Principal Office of the Trustee.
In addition to any such office or agency, the Company may
from time to time designate one or more offices or agencies
outside Hartford, Connecticut, where the Debentures may be
presented for
17
registration of transfer and for exchange in the
manner provided in this Indenture, and the Company may from time
to time rescind such designation, as the Company may deem
desirable or expedient; provided, however, that no such
designation or rescission shall in any manner relieve the
Company of its obligation to maintain any such office or agency
in Hartford, Connecticut, for the purposes above mentioned. The
Company will give to the Trustee prompt written notice of any
such designation or rescission thereof.
Section 3.3. Appointments to Fill Vacancies in Trustee's
Office. The Company, whenever necessary to avoid or fill a
vacancy in the office of Trustee, will appoint, in the manner
provided in Section 6.9, a Trustee, so that there shall at all
times be a Trustee hereunder.
Section 3.4. Provision as to Paying Agent.
(a) If the Company shall appoint a paying agent other than
the Trustee, it will cause such paying agent to execute and
deliver to the Trustee an instrument in which such agent shall
agree with the Trustee, subject to the provision of this
Section 3.4,
(1) that it will hold all sums held by it as such
agent for the payment of the principal of and premium,
if any, or interest, if any, on the Debentures
(whether such sums have been paid to it by the Company
or by any other obligor on the Debentures) in trust
for the benefit of the holders of the Debentures;
(2) that it will give the Trustee prompt written
notice of any failure by the Company (or by any other
obligor on the Debentures) to make any payment of the
principal of and premium, if any, or interest, if any,
on the Debentures when the same shall be due and
payable; and
(3) that it will, at any time during the continuance
of any Event of Default, upon the written request of
the Trustee, forthwith pay to the Trustee all sums so
held in trust by such paying agent.
(b) If the Company shall act as its own paying agent, it
will, on or before each due date of the principal of and
premium, if any, or interest or other payments, if any, on the
Debentures, set aside, segregate and hold in trust for the
benefit of the holders of the Debentures a sum sufficient to pay
such principal, premium, interest or other payments so becoming
due and will notify the Trustee in writing of any failure to
take such action and of any failure by the Company (or by any
other obligor under the Debentures) to make any payment of the
principal of and premium, if any, or interest or other payments,
if any, on the Debentures when the same shall become due and
payable.
Whenever the Company shall have one or more paying agents
for the Debentures, it will, on or prior to each due date of the
principal of and premium, if any, or interest, if any, on the
Debentures, deposit with a paying agent a sum sufficient to pay
the principal, premium, interest or other payments so becoming
due, such sum to be held in trust for the benefit of the Persons
entitled thereto and (unless such paying agent is the Trustee)
the Company shall promptly notify the Trustee in writing of its
action or failure to act.
(c) Anything in this Section 3.4 to the contrary
notwithstanding, the Company may, at any time, for the purpose
of obtaining a satisfaction and discharge with respect to the
Debentures, or for any other reason, pay, or direct any paying
agent to pay to the Trustee all sums held in trust by the
Company or any such paying agent, such sums to be held by the
Trustee upon the trusts herein contained.
(d) Anything in this Section 3.4 to the contrary
notwithstanding, the agreement to hold sums in trust as provided
in this Section 3.4 is subject to Sections 12.3 and 12.4.
18
Section 3.5. Certificate to Trustee. The Company will
deliver to the Trustee on or before 120 days after the end of
each fiscal year, so long as Debentures are outstanding
hereunder, a Certificate stating that in the course of the
performance by the signers of their duties as officers of the
Company they would normally have knowledge of any default during
such fiscal year by the Company in the performance of any
covenants contained herein, stating whether or not they have
knowledge of any such default and, if so, specifying each such
default of which the signers have knowledge and the nature and
status thereof.
Section 3.6. Additional Sums. If and for so long as the
Trust is the holder of all Debentures and the Trust is required
to pay any additional taxes (including withholding taxes),
duties, assessments or other governmental charges as a result of
a Tax Event, the Company will pay such additional amounts
("Additional Sums") on the Debentures as shall be required so
that the net amounts received and retained by the Trust after
paying taxes (including withholding taxes), duties, assessments
or other governmental charges will be equal to the amounts the
Trust would have received if no such taxes, duties, assessments
or other governmental charges had been imposed. Whenever in
this Indenture or the Debentures there is a reference in any
context to the payment of principal of or interest on the
Debentures, such mention shall be deemed to include mention of
payments of the Additional Sums provided for in this paragraph
to the extent that, in such context, Additional Sums are, were
or would be payable in respect thereof pursuant to the
provisions of this paragraph and express mention of the payment
of Additional Sums (if applicable) in any provisions hereof
shall not be construed as excluding Additional Sums in those
provisions hereof where such express mention is not made;
provided, however, that the deferral of the payment of interest
during an Extension Period pursuant to Section 2.11 shall not
defer the payment of any Additional Sums that may be due and
payable.
Section 3.7. Compliance with Consolidation
Provisions. The Company will not, while any of the Debentures
remain outstanding, consolidate with, or merge into, or merge
into itself, or sell or convey all or substantially all of its
property to any other Person unless the provisions of Article XI
hereof are complied with.
Section 3.8. Limitation on Dividends. If Debentures are
initially issued to the Trust or a trustee of such Trust in
connection with the issuance of Trust Securities by the Trust
(regardless of whether Debentures continue to be held by such
Trust) and (i) there shall have occurred and be continuing an
Event of Default, (ii) the Company shall be in default with
respect to its payment of any obligations under the Capital
Securities Guarantee, or (iii) the Company shall have given
notice of its election to defer payments of interest on the
Debentures by extending the interest payment period as provided
herein and such period, or any extension thereof, shall be
continuing, then the Company shall not, and shall not allow any
Affiliate of the Company to, (x) 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 its Affiliates' capital stock (other than
payments of dividends or distributions to the Company) or make
any guarantee payments with respect to the foregoing or (y) make
any payment of principal of or interest or premium, if any, on
or repay, repurchase or redeem any debt securities of the
Company or any Affiliate that rank pari passu in all respects
with or junior in interest to the Debentures (other than, with
respect to clauses (x) and (y) above, (1) 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 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, if any, (2) as a result of any 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, (3) the
19
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, (4) any declaration
of a dividend in connection with any stockholders' rights plan,
or the issuance of rights, stock or other property under any
stockholders' rights plan, or the redemption or repurchase of
rights pursuant thereto, (5) 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 and
any cash payments in lieu of fractional shares issued in
connection therewith, or (6) payments under the Capital
Securities Guarantee).
Section 3.9. Covenants as to the Trust. For so long as
the Trust Securities remain outstanding, the Company shall
maintain 100% ownership of the Common Securities; provided,
however, that any permitted successor of the Company under this
Indenture may succeed to the Company's ownership of such Common
Securities. The Company, as owner of the Common Securities,
shall, except in connection with a distribution of Debentures to
the holders of Trust Securities in liquidation of the Trust, the
redemption of all of the Trust Securities or certain mergers,
consolidations or amalgamations, each as permitted by the
Declaration, cause the Trust (a) to remain a statutory trust,
(b) to otherwise continue to be classified as a grantor trust
for United States federal income tax purposes, and (c) to cause
each holder of Trust Securities to be treated as owning an
undivided beneficial interest in the Debentures.
Section 3.10. Additional Junior Indebtedness. The Company
shall not, and it shall not cause or permit any Subsidiary of
the Company to, incur, issue or be obligated on any Additional
Junior Indebtedness, either directly or indirectly, by way of
guarantee, suretyship or otherwise, other than Additional Junior
Indebtedness (i) that, by its terms, is expressly stated to be
either junior and subordinate or pari passu in all respects to
the Debentures, and (ii) of which the Company has notified (and,
if then required under the applicable guidelines of the
regulating entity, has received approval from) the Federal
Reserve, if the Company is a bank holding company, or the OTS,
if the Company is a savings and loan holding company.
ARTICLE IV.
SECURITYHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
------------------------------
Section 4.1. Securityholders' Lists. The Company
covenants and agrees that it will furnish or caused to be
furnished to the Trustee:
(a) on each regular record date for the Debentures, a
list, in such form as the Trustee may reasonably require, of the
names and addresses of the Securityholders of the Debentures as
of such record date; and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any
such request, a list of similar form and content as of a date
not more than 15 days prior to the time such list is furnished;
except that no such lists need be furnished under this
Section 4.1 so long as the Trustee is in possession thereof by
reason of its acting as Debenture registrar.
Section 4.2. Preservation and Disclosure of Lists.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and
addresses of the holders of Debentures (1) contained in the most
recent list furnished to it as provided in Section 4.1 or
(2) received by it in the capacity of Debentures registrar
20
(if so acting) hereunder. The Trustee may destroy any list
furnished to it as provided in Section 4.1 upon receipt of a new
list so furnished.
(b) In case three or more holders of Debentures
(hereinafter referred to as "applicants") apply in writing to
the Trustee and furnish to the Trustee reasonable proof that
each such applicant has owned a Debenture for a period of at
least 6 months preceding the date of such application, and such
application states that the applicants desire to communicate
with other holders of Debentures with respect to their rights
under this Indenture or under such Debentures and is accompanied
by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall within 5
Business Days after the receipt of such application, at its
election, either:
(1) afford such applicants access to the information
preserved at the time by the Trustee in accordance
with the provisions of subsection (a) of this
Section 4.2, or
(2) inform such applicants as to the approximate
number of holders of Debentures whose names and
addresses appear in the information preserved at the
time by the Trustee in accordance with the provisions
of subsection (a) of this Section 4.2, and as to the
approximate cost of mailing to such Securityholders
the form of proxy or other communication, if any,
specified in such application.
If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon the written
request of such applicants, mail to each Securityholder whose
name and address appear in the information preserved at the time
by the Trustee in accordance with the provisions of
subsection (a) of this Section 4.2 a copy of the form of proxy
or other communication which is specified in such request with
reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within
five days after such tender, the Trustee shall mail to such
applicants and file with the Securities and Exchange Commission,
if permitted or required by applicable law, together with a copy
of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be
contrary to the best interests of the holders of all Debentures,
as the case may be, or would be in violation of applicable law.
Such written statement shall specify the basis of such opinion.
If said Commission, as permitted or required by applicable law,
after opportunity for a hearing upon the objections specified in
the written statement so filed, shall enter an order refusing to
sustain any of such objections or if, after the entry of an
order sustaining one or more of such objections, said Commission
shall find, after notice and opportunity for hearing, that all
the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such
material to all such Securityholders with reasonable promptness
after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or
duty to such applicants respecting their application.
(c) Each and every holder of Debentures, by receiving and
holding the same, agrees with Company and the Trustee that
neither the Company nor the Trustee nor any paying agent shall
be held accountable by reason of the disclosure of any such
information as to the names and addresses of the holders of
Debentures in accordance with the provisions of subsection (b)
of this Section 4.2, regardless of the source from which such
information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a
request made under said subsection (b).
ARTICLE V.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
UPON AN EVENT OF DEFAULT
-------------------------------------------
Section 5.1. Events of Default. "Event of Default,"
wherever used herein, means any one of the following events
(whatever the reason for such Event of Default and whether it
shall be voluntary or
21
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) the Company defaults in the payment of any interest
upon any Debenture when it becomes due and payable, and fails to
cure such default for a period of 30 days; provided, however,
that a valid extension of an interest payment period by the
Company in accordance with the terms of this Indenture shall not
constitute a default in the payment of interest for this
purpose; or
(b) the Company defaults in the payment of all or any part
of the principal of (or premium, if any, on) any Debentures as
and when the same shall become due and payable either at
maturity, upon redemption, by declaration of acceleration or
otherwise; or
(c) the Company defaults in the performance of, or
breaches, any of its covenants or agreements in this Indenture
or in the terms of the Debentures established as contemplated in
this Indenture (other than a covenant or agreement a default in
whose performance or whose breach is elsewhere in this Section
specifically dealt with), and continuance of such default or
breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or
to the Company and the Trustee by the holders of at least 25% in
aggregate principal amount of the outstanding Debentures, a
written notice specifying such default or breach and requiring
it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(d) a court of competent jurisdiction shall enter a decree
or order for relief in respect of the Company in an involuntary
case under any applicable bankruptcy, insolvency, reorganization
or other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of the Company or for any substantial part
of its property, or ordering the winding-up or liquidation of
its affairs and such decree or order shall remain unstayed and
in effect for a period of 90 consecutive days; or
(e) the Company shall commence a voluntary case under any
applicable bankruptcy, insolvency, reorganization or other
similar law now or hereafter in effect, shall consent to the
entry of an order for relief in an involuntary case under any
such law, or shall consent to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee,
custodian, sequestrator (or other similar official) of the
Company or of any substantial part of its property, or shall
make any general assignment for the benefit of creditors, or
shall fail generally to pay its debts as they become due; or
(f) the Trust shall have voluntarily or involuntarily
liquidated, dissolved, wound-up its business or otherwise
terminated its existence except in connection with (i) the
distribution of the Debentures to holders of such Trust
Securities in liquidation of their interests in the Trust,
(ii) the redemption of all of the outstanding Trust Securities
or (iii) certain mergers, consolidations or amalgamations, each
as permitted by the Declaration.
If an Event of Default occurs and is continuing with
respect to the Debentures, then, and in each and every such
case, unless the principal of the Debentures shall have already
become due and payable, either the Trustee or the holders of not
less than 25% in aggregate principal amount of the Debentures
then outstanding hereunder, by notice in writing to the Company
(and to the Trustee if given by Securityholders), may declare
the entire principal of the Debentures and the interest accrued
thereon, if any, to be due and payable immediately, and upon any
such declaration the same shall become immediately due and
payable.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal of the
Debentures shall have been so declared due and payable, and
before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided,
22
(i) the Company shall pay or shall deposit with the Trustee a
sum sufficient to pay all matured installments of interest upon
all the Debentures and the principal of and premium, if any, on
the Debentures which shall have become due otherwise than by
acceleration (with interest upon such principal and premium, if
any, and Additional Interest) and such amount as shall be
sufficient to cover reasonable compensation to the Trustee and
each predecessor Trustee, their respective agents, attorneys and
counsel, and all other amounts due to the Trustee pursuant to
Section 6.6, if any, and (ii) all Events of Default under this
Indenture, other than the non-payment of the principal of or
premium, if any, on Debentures which shall have become due by
acceleration, shall have been cured, waived or otherwise
remedied as provided herein -- then and in every such case the
holders of a majority in aggregate principal amount of the
Debentures then outstanding, by written notice to the Company
and to the Trustee, may waive all defaults and rescind and annul
such declaration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been
discontinued or abandoned because of such rescission or
annulment or for any other reason or shall have been determined
adversely to the Trustee, then and in every such case the
Company, the Trustee and the holders of the Debentures shall be
restored respectively to their several positions and rights
hereunder, and all rights, remedies and powers of the Company,
the Trustee and the holders of the Debentures shall continue as
though no such proceeding had been taken.
Section 5.2. Payment of Debentures on Default; Suit
Therefor. The Company covenants that upon the occurrence of an
Event of Default pursuant to Section 5.1(a) or Section 5.1(b)
then, upon demand of the Trustee, the Company will pay to the
Trustee, for the benefit of the holders of the Debentures the
whole amount that then shall have become due and payable on all
Debentures for principal and premium, if any, or interest, or
both, as the case may be, with Additional Interest accrued on
the Debentures (to the extent that payment of such interest is
enforceable under applicable law and, if the Debentures are held
by the Trust or a trustee of such Trust, without duplication of
any other amounts paid by the Trust or a trustee in respect
thereof); and, in addition thereto, such further amount as shall
be sufficient to cover the costs and expenses of collection,
including a reasonable compensation to the Trustee, its agents,
attorneys and counsel, and any other amounts due to the Trustee
under Section 6.6. In case the Company shall fail forthwith to
pay such amounts upon such demand, the Trustee, in its own name
and as trustee of an express trust, shall be entitled and
empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceeding to judgment or final
decree, and may enforce any such judgment or final decree
against the Company or any other obligor on such Debentures and
collect in the manner provided by law out of the property of the
Company or any other obligor on such Debentures wherever
situated the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings for the
bankruptcy or for the reorganization of the Company or any other
obligor on the Debentures under Bankruptcy Law, or in case a
receiver or trustee shall have been appointed for the property
of the Company or such other obligor, or in the case of any
other similar judicial proceedings relative to the Company or
other obligor upon the Debentures, or to the creditors or
property of the Company or such other obligor, the Trustee,
irrespective of whether the principal of the Debentures shall
then be due and payable as therein expressed or by declaration
of acceleration or otherwise and irrespective of whether the
Trustee shall have made any demand pursuant to the provisions of
this Section 5.2, shall be entitled and empowered, by
intervention in such proceedings or otherwise,
(i) to file and prove a claim or claims for the whole
amount of principal and interest owing and unpaid in
respect of the Debentures,
23
(ii) in case of any judicial proceedings, to file such
proofs of claim and other papers or documents as may
be necessary or advisable in order to have the claims
of the Trustee (including any claim for reasonable
compensation to the Trustee and each predecessor
Trustee, and their respective agents, attorneys and
counsel, and for reimbursement of all other amounts
due to the Trustee under Section 6.6), and of the
Securityholders allowed in such judicial proceedings
relative to the Company or any other obligor on the
Debentures, or to the creditors or property of the
Company or such other obligor, unless prohibited by
applicable law and regulations, to vote on behalf of
the holders of the Debentures in any election of a
trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or
insolvency proceedings or Person performing similar
functions in comparable proceedings,
(iii) to collect and receive any moneys or other
property payable or deliverable on any such claims,
and
(iv) to distribute the same after the deduction of its
charges and expenses.
Any receiver, assignee or trustee in bankruptcy or
reorganization is hereby authorized by each of the
Securityholders 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 Securityholders, to pay to the Trustee
such amounts as shall be sufficient to cover reasonable
compensation to the Trustee, each predecessor Trustee and their
respective agents, attorneys and counsel, and all other amounts
due to the Trustee under Section 6.6.
Nothing herein contained shall be construed to authorize
the Trustee to authorize or consent to or accept or adopt on
behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Debentures
or the rights of any holder thereof or to authorize the Trustee
to vote in respect of the claim of any Securityholder in any
such proceeding.
All rights of action and of asserting claims under this
Indenture, or under any of the Debentures, may be enforced by
the Trustee without the possession of any of the Debentures, or
the production thereof at any trial or other proceeding relative
thereto, and any such suit or proceeding instituted by the
Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall be for the
ratable benefit of the holders of the Debentures.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of
this Indenture to which the Trustee shall be a party), the
Trustee shall be held to represent all the holders of the
Debentures, and it shall not be necessary to make any holders of
the Debentures parties to any such proceedings.
Section 5.3. Application of Moneys Collected by
Trustee. Any moneys collected by the Trustee pursuant to this
Article V shall be applied in the following order, at the date
or dates fixed by the Trustee for the distribution of such
moneys, upon presentation of the several Debentures in respect
of which moneys have been collected, and stamping thereon the
payment, if only partially paid, and upon surrender thereof if
fully paid:
First: To the payment of costs and expenses incurred by,
and reasonable fees of, the Trustee, its agents, attorneys and
counsel, and of all other amounts due to the Trustee under
Section 6.6;
Second: To the payment of all Senior Indebtedness of the
Company if and to the extent required by Article XV;
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Third: To the payment of the amounts then due and unpaid
upon Debentures for principal (and premium, if any), and
interest on the Debentures, in respect of which or for the
benefit of which money has been collected, ratably, without
preference or priority of any kind, according to the amounts due
on such Debentures (including Additional Interest); and
Fourth: The balance, if any, to the Company.
Section 5.4. Proceedings by Securityholders. No holder
of any Debenture shall have any right to institute any suit,
action or proceeding for any remedy hereunder, unless such
holder previously shall have given to the Trustee written notice
of an Event of Default with respect to the Debentures and unless
the holders of not less than 25% in aggregate principal amount
of the Debentures then outstanding shall have given the Trustee
a written request to institute such action, suit or proceeding
and shall have offered to the Trustee such reasonable indemnity
as it may require against the costs, expenses and liabilities to
be incurred thereby, and the Trustee for 60 days after its
receipt of such notice, request and offer of indemnity shall
have failed to institute any such action, suit or proceeding.
Notwithstanding any other provisions in this Indenture,
however, the right of any holder of any Debenture to receive
payment of the principal of, premium, if any, and interest, on
such Debenture when due, or to institute suit for the
enforcement of any such payment, shall not be impaired or
affected without the consent of such holder and by accepting a
Debenture hereunder it is expressly understood, intended and
covenanted by the taker and holder of every Debenture with every
other such taker and holder and the Trustee, that no one or more
holders of Debentures shall have any right in any manner
whatsoever by virtue or by availing itself of any provision of
this Indenture to affect, disturb or prejudice the rights of the
holders of any other Debentures, or to obtain or seek to obtain
priority over or preference to any other such holder, or to
enforce any right under this Indenture, except in the manner
herein provided and for the equal, ratable and common benefit of
all holders of Debentures. For the protection and enforcement
of the provisions of this Section, each and every Securityholder
and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
Section 5.5. Proceedings by Trustee. In case of an Event
of Default hereunder the Trustee may in its discretion proceed
to protect and enforce the rights vested in it by this Indenture
by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any of such rights,
either by suit in equity or by action at law or by proceeding in
bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid
of the exercise of any power granted in this Indenture, or to
enforce any other legal or equitable right vested in the Trustee
by this Indenture or by law.
Section 5.6. Remedies Cumulative and Continuing; Delay or
Omission Not a Waiver. Except as otherwise provided in
Section 2.6, all powers and remedies given by this Article V to
the Trustee or to the Securityholders shall, to the extent
permitted by law, be deemed cumulative and not exclusive of any
other powers and remedies available to the Trustee or the
holders of the Debentures, by judicial proceedings or otherwise,
to enforce the performance or observance of the covenants and
agreements contained in this Indenture or otherwise established
with respect to the Debentures, and no delay or omission of the
Trustee or of any holder of any of the Debentures to exercise
any right, remedy or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such
right, remedy or power, or shall be construed to be a waiver of
any such default or an acquiescence therein; and, subject to the
provisions of Section 5.4, every power and remedy given by this
Article V or by law to the Trustee or to the Securityholders may
be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee (in accordance with its duties under
Section 6.1) or by the Securityholders.
25
Section 5.7. Direction of Proceedings and Waiver of
Defaults by Majority of Securityholders. The holders of a
majority in aggregate principal amount of the Debentures
affected (voting as one class) at the time outstanding shall
have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the
Trustee with respect to such Debentures; provided, however, that
(subject to the provisions of Section 6.1) the Trustee shall
have the right to decline to follow any such direction if the
Trustee shall determine that the action so directed would be
unjustly prejudicial to the holders not taking part in such
direction or if the Trustee being advised by counsel determines
that the action or proceeding so directed may not lawfully be
taken or if a Responsible Officer of the Trustee shall determine
that the action or proceedings so directed would involve the
Trustee in personal liability.
The holders of a majority in aggregate principal amount of
the Debentures at the time outstanding may on behalf of the
holders of all of the Debentures waive (or modify any previously
granted waiver of) any past default or Event of Default, and its
consequences, except a default (a) in the payment of principal
of, premium, if any, or interest on any of the Debentures,
(b) in respect of covenants or provisions hereof which cannot be
modified or amended without the consent of the holder of each
Debenture affected, or (c) in respect of the covenants contained
in Section 3.9; provided, however, that if the Debentures are
held by the Trust or a trustee of such trust, such waiver or
modification to such waiver shall not be effective until the
holders of a majority in Liquidation Amount of Trust Securities
of the Trust shall have consented to such waiver or modification
to such waiver, provided, further, that if the consent of the
holder of each outstanding Debenture is required, such waiver
shall not be effective until each holder of the Trust Securities
of the Trust shall have consented to such waiver. Upon any such
waiver, the default covered thereby shall be deemed to be cured
for all purposes of this Indenture and the Company, the Trustee
and the holders of the Debentures shall be restored to their
former positions and rights hereunder, respectively; but no such
waiver shall extend to any subsequent or other default or Event
of Default or impair any right consequent thereon. Whenever any
default or Event of Default hereunder shall have been waived as
permitted by this Section, said default or Event of Default
shall for all purposes of the Debentures and this Indenture be
deemed to have been cured and to be not continuing.
Section 5.8. Notice of Defaults. The Trustee shall,
within 90 days after the actual knowledge by a Responsible
Officer of the Trustee of the occurrence of a default with
respect to the Debentures, mail to all Securityholders, as the
names and addresses of such holders appear upon the Debenture
Register, notice of all defaults with respect to the Debentures
known to the Trustee, unless such defaults shall have been cured
before the giving of such notice (the term "defaults" for the
purpose of this Section 5.8 being hereby defined to be the
events specified in clauses (a), (b), (c), (d), (e) and (f) of
Section 5.1, not including periods of grace, if any, provided
for therein); provided, however, that, except in the case of
default in the payment of the principal of, premium, if any, or
interest on any of the Debentures, the Trustee shall be
protected in withholding such notice if and so long as a
Responsible Officer of the Trustee in good faith determines that
the withholding of such notice is in the interests of the
Securityholders.
Section 5.9. Undertaking to Pay Costs. All parties to
this Indenture agree, and each holder of any Debenture by his
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;
provided, however, that the provisions of this Section 5.9 shall
not apply to any suit instituted by the Trustee, to any suit
instituted by any Securityholder, or group of Securityholders,
holding in the aggregate more than 10% in principal amount of
the Debentures outstanding, or to any suit instituted by any
26
Securityholder for the enforcement of the payment of the
principal of (or premium, if any) or interest on any Debenture
against the Company on or after the same shall have become due
and payable.
ARTICLE VI.
CONCERNING THE TRUSTEE
----------------------
Section 6.1. Duties and Responsibilities of
Trustee. With respect to the holders of Debentures issued
hereunder, the Trustee, prior to the occurrence of an Event of
Default with respect to the Debentures and after the curing or
waiving of all Events of Default which may have occurred, with
respect to the Debentures, undertakes to perform such duties and
only such duties as are specifically set forth in this
Indenture, and no implied covenants shall be read into this
Indenture against the Trustee. In case an Event of Default with
respect to the Debentures has occurred (which has not been cured
or waived), the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree
of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his
own affairs.
No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action,
its own negligent failure to act or its own willful misconduct,
except that:
(a) prior to the occurrence of an Event of Default with
respect to Debentures and after the curing or waiving of all
Events of Default which may have occurred
(1) the duties and obligations of the Trustee with
respect to Debentures shall be determined solely by
the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance
of such duties and obligations with respect to the
Debentures as are specifically set forth in this
Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee, and
(2) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to
the requirements of this Indenture; but, in the case
of any such certificates or opinions which by any
provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not
they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or Officers
of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith, in
accordance with the direction of the Securityholders pursuant to
Section 5.7, relating to the time, method and place of
conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture.
None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers, if
there is ground for believing that the repayment of such funds
or liability is not assured to it under the terms of this
Indenture or indemnity satisfactory to the Trustee against such
risk is not reasonably assured to it.
27
Section 6.2. Reliance on Documents, Opinions,
etc. Except as otherwise provided in Section 6.1:
(a) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, bond, note, debenture or other
paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any Board Resolution may be
evidenced to the Trustee by a copy thereof certified by the
Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel of its selection
and any advice or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at
the request, order or direction of any of the Securityholders,
pursuant to the provisions of this Indenture, unless such
Securityholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken
or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers
conferred upon it by this Indenture; nothing contained herein
shall, however, relieve the Trustee of the obligation, upon the
occurrence of an Event of Default with respect to the Debentures
(that has not been cured or waived) to exercise with respect to
Debentures such of the rights and powers vested in it by this
Indenture, and to use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs;
(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, consent, order, approval, bond, debenture,
coupon or other paper or document, unless requested in writing
to do so by the holders of not less than a majority in aggregate
principal amount of the outstanding Debentures affected thereby;
provided, however, that if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such expense or
liability as a condition to so proceeding;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by
or through agents (including any Authenticating Agent) or
attorneys, and the Trustee shall not be responsible for any
misconduct or negligence on the part of any such agent or
attorney appointed by it with due care; and
(h) with the exceptions of defaults under Sections 5.1(a)
or 5.1(b), the Trustee shall not be charged with knowledge of
any Default or Event of Default with respect to the Debentures
unless a written notice of such Default or Event of Default
shall have been given to the Trustee by the Company or any other
obligor on the Debentures or by any holder of the Debentures.
Section 6.3. No Responsibility for Recitals, etc. The
recitals contained herein and in the Debentures (except in the
certificate of authentication of the Trustee or the
Authenticating Agent) shall be
28
taken as the statements of the Company, and the Trustee and the
Authenticating Agent assume no responsibility for the correctness of
the same. The Trustee and the Authenticating Agent make no representations
as to the validity or sufficiency of this Indenture or of the Debentures.
The Trustee and the Authenticating Agent shall not be
accountable for the use or application by the Company of any
Debentures or the proceeds of any Debentures authenticated and
delivered by the Trustee or the Authenticating Agent in
conformity with the provisions of this Indenture.
Section 6.4. Trustee, Authenticating Agent, Paying
Agents, Transfer Agents or Registrar May Own Debentures. The
Trustee or any Authenticating Agent or any paying agent or any
transfer agent or any Debenture registrar, in its individual or
any other capacity, may become the owner or pledgee of
Debentures with the same rights it would have if it were not
Trustee, Authenticating Agent, paying agent, transfer agent or
Debenture registrar.
Section 6.5. Moneys to be Held in Trust. Subject to the
provisions of Section 12.4, all moneys received by the Trustee
or any paying agent shall, until used or applied as herein
provided, be held in trust for the purpose for which they were
received, but need not be segregated from other funds except to
the extent required by law. The Trustee and any paying agent
shall be under no liability for interest on any money received
by it hereunder except as otherwise agreed in writing with the
Company. So long as no Event of Default shall have occurred and
be continuing, all interest allowed on any such moneys shall be
paid from time to time upon the written order of the Company,
signed by the Chairman of the Board of Directors, the Chief
Executive Officer, the President, a Managing Director, a Vice
President, the Treasurer or an Assistant Treasurer of the
Company.
Section 6.6. Compensation and Expenses of Trustee. The
Company covenants and agrees to pay or reimburse the Trustee
upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any
of the provisions of this Indenture (including the reasonable
compensation and the expenses and disbursements of its counsel
and of all Persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its
negligence or willful misconduct. For purposes of
clarification, this Section 6.6 does not contemplate the payment
by the Company of acceptance or annual administration fees owing
to the Trustee pursuant to the services to be provided by the
Trustee under this Indenture or the fees and expenses of the
Trustee's counsel in connection with the closing of the
transactions contemplated by this Indenture. The Company also
covenants to indemnify each of the Trustee or any predecessor
Trustee (and its officers, agents, directors and employees) for,
and to hold it harmless against, any and all loss, damage,
claim, liability or expense including taxes (other than taxes
based on the income of the Trustee) incurred without negligence
or willful misconduct on the part of the Trustee and arising out
of or in connection with the acceptance or administration of
this trust, including the costs and expenses of defending itself
against any claim of liability. The obligations of the Company
under this Section 6.6 to compensate and indemnify the Trustee
and to pay or reimburse the Trustee for expenses, disbursements
and advances shall constitute additional indebtedness hereunder.
Such additional indebtedness shall be secured by a lien prior to
that of the Debentures upon all property and funds held or
collected by the Trustee as such, except funds held in trust for
the benefit of the holders of particular Debentures.
Without prejudice to any other rights available to the
Trustee under applicable law, when the Trustee incurs expenses
or renders services in connection with an Event of Default
specified in Section 5.1(d), Section 5.1(e) or Section 5.1(f),
the expenses (including the reasonable charges and expenses of
its counsel) and the compensation for the services are intended
to constitute expenses of administration under any applicable
federal or state bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the
resignation or removal of the Trustee and the defeasance or
other termination of this Indenture.
29
Notwithstanding anything in this Indenture or any Debenture
to the contrary, the Trustee shall have no obligation whatsoever
to advance funds to pay any principal of or interest on or other
amounts with respect to the Debentures or otherwise advance
funds to or on behalf of the Company.
Section 6.7. Officers' Certificate as Evidence. Except
as otherwise provided in Sections 6.1 and 6.2, whenever in the
administration of the provisions of this Indenture the Trustee
shall deem it necessary or desirable that a matter be proved or
established prior to taking or omitting any action hereunder,
such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or
willful misconduct on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate
delivered to the Trustee, and such certificate, in the absence
of negligence or willful misconduct on the part of the Trustee,
shall be full warrant to the Trustee for any action taken or
omitted by it under the provisions of this Indenture upon the
faith thereof.
Section 6.8. Eligibility of Trustee. The Trustee
hereunder shall at all times be a corporation organized and
doing business under the laws of the United States of America or
any state or territory thereof or of the District of Columbia or
a corporation or other Person authorized under such laws to
exercise corporate trust powers, having (or whose obligations
under this Indenture are guaranteed by an affiliate having) a
combined capital and surplus of at least 50 million U.S. dollars
($50,000,000.00) and subject to supervision or examination by
federal, state, territorial, or District of Columbia authority.
If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the
purposes of this Section 6.8 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 records of condition so
published.
The Company may not, nor may any Person directly or
indirectly controlling, controlled by, or under common control
with the Company, serve as Trustee.
In case at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section 6.8, the
Trustee shall resign immediately in the manner and with the
effect specified in Section 6.9.
If the Trustee has or shall acquire any "conflicting
interest" within the meaning of 310(b) of the Trust Indenture
Act of 1939, the Trustee shall either eliminate such interest or
resign, to the extent and in the manner described by this
Indenture.
Section 6.9. Resignation or Removal of Trustee
(a) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign by giving written notice of
such resignation to the Company and by mailing notice thereof,
at the Company's expense, to the holders of the Debentures at
their addresses as they shall appear on the Debenture Register.
Upon receiving such notice of resignation, the Company shall
promptly appoint a successor trustee or trustees by written
instrument, in duplicate, executed by order of its Board of
Directors, one copy of which instrument shall be delivered to
the resigning Trustee and one copy to the successor Trustee. If
no successor Trustee shall have been so appointed and have
accepted appointment within 30 days after the mailing of such
notice of resignation to the affected Securityholders, the
resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee, or any
Securityholder who has been a bona fide holder of a Debenture or
Debentures for at least six months may, subject to the
provisions of Section 5.9, on behalf of himself and all others
similarly situated, petition any such court for the appointment
of a successor Trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, appoint a
successor Trustee.
30
(b) In case at any time any of the following shall occur --
(1) the Trustee shall fail to comply with the
provisions of Section 6.8 after written request
therefor by the Company or by any Securityholder who
has been a bona fide holder of a Debenture or
Debentures for at least 6 months, or
(2) the Trustee shall cease to be eligible in
accordance with the provisions of Section 6.8 and
shall fail to resign after written request therefor by
the Company or by any such Securityholder, or
(3) the Trustee shall become incapable of acting, or
shall be adjudged as bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs
for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, the Company may remove the
Trustee and appoint a successor Trustee by written
instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument shall
be delivered to the Trustee so removed and one copy to
the successor Trustee, or, subject to the provisions
of Section 5.9, any Securityholder who has been a bona
fide holder of a Debenture or Debentures for at least
6 months may, on behalf of himself and all others
similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee. Such court may
thereupon, after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint
successor Trustee.
(c) Upon prior written notice to the Company and the
Trustee, the holders of a majority in aggregate principal amount
of the Debentures at the time outstanding may at any time remove
the Trustee and nominate a successor Trustee, which shall be
deemed appointed as successor Trustee unless within 10 Business
Days after such nomination the Company objects thereto, in which
case, or in the case of a failure by such holders to nominate a
successor Trustee, the Trustee so removed or any Securityholder,
upon the terms and conditions and otherwise as in subsection (a)
of this Section 6.9 provided, may petition any court of
competent jurisdiction for an appointment of a successor.
(d) Any resignation or removal of the Trustee and
appointment of a successor Trustee pursuant to any of the
provisions of this Section shall become effective upon
acceptance of appointment by the successor Trustee as provided
in Section 6.10.
Section 6.10. Acceptance by Successor Trustee. Any
successor Trustee appointed as provided in Section 6.9 shall
execute, acknowledge and deliver to the Company and to its
predecessor Trustee an instrument accepting such appointment
hereunder, 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, duties and
obligations with respect to the Debentures of its predecessor
hereunder, with like effect as if originally named as Trustee
herein; but, nevertheless, on the written request of the Company
or of the successor Trustee, the Trustee ceasing to act shall,
upon payment of any amounts then due it pursuant to the
provisions of Section 6.6, execute and deliver an instrument
transferring to such successor Trustee all the rights and powers
of the Trustee so ceasing to act and shall duly assign, transfer
and deliver to such successor Trustee all property and money
held by such retiring Trustee thereunder. Upon request of any
such successor Trustee, the Company shall execute any and all
instruments in writing for more fully and certainly vesting in
and confirming to such successor Trustee all such rights and
powers. Any Trustee ceasing to act shall, nevertheless, retain
a lien upon all property or funds held or collected by such
Trustee to secure any amounts then due it pursuant to the
provisions of Section 6.6.
31
If a successor Trustee is appointed, the Company, the
retiring Trustee and the successor Trustee shall execute and
deliver an indenture supplemental hereto which shall contain
such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Debentures as to which the
predecessor Trustee is not retiring shall continue to be vested
in the predecessor Trustee, and shall add to or change any of
the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the Trust
hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that
each such Trustee shall be Trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee.
No successor Trustee shall accept appointment as provided
in this Section unless at the time of such acceptance such
successor Trustee shall be eligible under the provisions of
Section 6.8.
In no event shall a retiring Trustee be liable for the acts
or omissions of any successor Trustee hereunder.
Upon acceptance of appointment by a successor Trustee as
provided in this Section 6.10, the Company shall mail notice of
the succession of such Trustee hereunder to the holders of
Debentures at their addresses as they shall appear on the
Debenture Register. If the Company fails to mail such notice
within 10 Business Days after the acceptance of appointment by
the successor Trustee, the successor Trustee shall cause such
notice to be mailed at the expense of the Company.
Section 6.11. Succession by Merger, etc. Any corporation
into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall
be a party, or any corporation succeeding to all or
substantially all 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 such corporation
shall be otherwise eligible and qualified under this Article.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the
Debentures shall have been authenticated but not delivered, any
such successor to the Trustee may adopt the certificate of
authentication of any predecessor Trustee, and deliver such
Debentures so authenticated; and in case at that time any of the
Debentures shall not have been authenticated, any successor to
the Trustee may authenticate such Debentures either in the name
of any predecessor hereunder or in the name of the successor
Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Debentures or in this
Indenture provided that the certificate of the Trustee shall
have; provided, however, that the right to adopt the certificate
of authentication of any predecessor Trustee or authenticate
Debentures in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, conversion or
consolidation.
Section 6.12. Authenticating Agents. There may be one or
more Authenticating Agents appointed by the Trustee upon the
request of the Company with power to act on its behalf and
subject to its direction in the authentication and delivery of
Debentures issued upon exchange or registration of transfer
thereof as fully to all intents and purposes as though any such
Authenticating Agent had been expressly authorized to
authenticate and deliver Debentures; provided, however, that the
Trustee shall have no liability to the Company for any acts or
omissions of the Authenticating Agent with respect to the
authentication and delivery of Debentures. Any such
Authenticating Agent shall at all times be a corporation
organized and doing business under the laws of the United States
or of any state or territory thereof or of the District of
Columbia authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of at least
$50,000,000.00 and being subject to supervision or examination
by federal, state, territorial or District of Columbia
authority. If such corporation publishes reports of condition
at least annually pursuant to law or the requirements of such
authority, then for the purposes of
32
this Section 6.12 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 an
Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately
in the manner and with the effect herein specified in this
Section.
Any corporation into which any Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, consolidation or
conversion to which any Authenticating Agent shall be a party,
or any corporation succeeding to all or substantially all of the
corporate trust business of any Authenticating Agent, shall be
the successor of such Authenticating Agent hereunder, if such
successor corporation is otherwise eligible under this
Section 6.12 without the execution or filing of any paper or any
further act on the part of the parties hereto or such
Authenticating Agent.
Any Authenticating Agent may at any time resign by giving
written notice of resignation to the Trustee and to the Company.
The Trustee may at any time terminate the agency of any
Authenticating Agent with respect to the Debentures by giving
written notice of termination 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 any
Authenticating Agent shall cease to be eligible under this
Section 6.12, the Trustee may, and upon the request of the
Company shall, promptly appoint a successor Authenticating Agent
eligible under this Section 6.12, shall give written notice of
such appointment to the Company and shall mail notice of such
appointment to all holders of Debentures as the names and
addresses of such holders appear on the Debenture Register. Any
successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all rights,
powers, duties and responsibilities with respect to the
Debentures of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent herein.
The Company agrees to pay to any Authenticating Agent from
time to time reasonable compensation for its services. Any
Authenticating Agent shall have no responsibility or liability
for any action taken by it as such in accordance with the
directions of the Trustee.
ARTICLE VII.
CONCERNING THE SECURITYHOLDERS
------------------------------
Section 7.1. Action by Securityholders. Whenever in this
Indenture it is provided that the holders of a specified
percentage in aggregate principal amount of the Debentures may
take any action (including the making of any demand or request,
the giving of any notice, consent or waiver or the taking of any
other action) the fact that at the time of taking any such
action the holders of such specified percentage have joined
therein may be evidenced (a) by any instrument or any number of
instruments of similar tenor executed by such Securityholders in
person or by agent or proxy appointed in writing, or (b) by the
record of such holders of Debentures voting in favor thereof at
any meeting of such Securityholders duly called and held in
accordance with the provisions of Article VIII, or (c) by a
combination of such instrument or instruments and any such
record of such a meeting of such Securityholders or (d) by any
other method the Trustee deems satisfactory.
If the Company shall solicit from the Securityholders any
request, demand, authorization, direction, notice, consent,
waiver or other action or revocation of the same, the Company
may, at its option, as evidenced by an Officers' Certificate,
fix in advance a record date for such Debentures for the
determination of Securityholders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or
other action or revocation of the same, but the Company shall
have no obligation to do so. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent,
waiver or other action or revocation of the same may be given
before or after the record date, but only the Securityholders of
record at the close of business on the record date shall be
deemed to be Securityholders
33
for the purposes of determining whether Securityholders of the requisite
proportion of outstanding Debentures have authorized or agreed or
consented to such request, demand, authorization, direction, notice,
consent, waiver or other action or revocation of the same, and for that
purpose the outstanding Debentures shall be computed as of the
record date; provided, however, that no such authorization,
agreement or consent by such Securityholders on the record date
shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than 6
months after the record date.
Section 7.2. Proof of Execution by
Securityholders. Subject to the provisions of Section 6.1, 6.2
and 8.5, proof of the execution of any instrument by a
Securityholder or his agent or proxy shall be sufficient if made
in accordance with such reasonable rules and regulations as may
be prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee. The ownership of Debentures shall
be proved by the Debenture Register or by a certificate of the
Debenture registrar. The Trustee may require such additional
proof of any matter referred to in this Section as it shall deem
necessary.
The record of any Securityholders' meeting shall be proved
in the manner provided in Section 8.6.
Section 7.3. Who Are Deemed Absolute Owners. Prior to
due presentment for registration of transfer of any Debenture,
the Company, the Trustee, any Authenticating Agent, any paying
agent, any transfer agent and any Debenture registrar may deem
the Person in whose name such Debenture shall be registered upon
the Debenture Register to be, and may treat him as, the absolute
owner of such Debenture (whether or not such Debenture shall be
overdue) for the purpose of receiving payment of or on account
of the principal of, premium, if any, and interest on such
Debenture and for all other purposes; and neither the Company
nor the Trustee nor any Authenticating Agent nor any paying
agent nor any transfer agent nor any Debenture registrar shall
be affected by any notice to the contrary. All such payments so
made to any holder for the time being or upon his order shall be
valid, and, to the extent of the sum or sums so paid, effectual
to satisfy and discharge the liability for moneys payable upon
any such Debenture.
Section 7.4. Debentures Owned by Company Deemed Not
Outstanding. In determining whether the holders of the
requisite aggregate principal amount of Debentures have
concurred in any direction, consent or waiver under this
Indenture, Debentures which are owned by the Company or any
other obligor on the Debentures or by any Person directly or
indirectly controlling or controlled by or under direct or
indirect common control with the Company or any other obligor on
the Debentures shall be disregarded and deemed not to be
outstanding for the purpose of any such determination; provided,
however, that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction,
consent or waiver, only Debentures which a Responsible Officer
of the Trustee actually knows are so owned shall be so
disregarded. Debentures so owned which have been pledged in
good faith may be regarded as outstanding for the purposes of
this Section 7.4 if the pledgee shall establish to the
satisfaction of the Trustee the pledgee's right to vote such
Debentures and that the pledgee is not the Company or any such
other obligor or Person directly or indirectly controlling or
controlled by or under direct or indirect common control with
the Company or any such other obligor. In the case of a dispute
as to such right, any decision by the Trustee taken upon the
advice of counsel shall be full protection to the Trustee.
Section 7.5. Revocation of Consents; Future Holders
Bound. At any time prior to (but not after) the evidencing to
the Trustee, as provided in Section 7.1, of the taking of any
action by the holders of the percentage in aggregate principal
amount of the Debentures specified in this Indenture in
connection with such action, any holder (in cases where no
record date has been set pursuant to Section 7.1) or any holder
as of an applicable record date (in cases where a record date
has been set pursuant to Section 7.1) of a Debenture (or any
Debenture issued in whole or in part in exchange or
34
substitution therefor) the serial number of which is shown by the
evidence to be included in the Debentures the holders of which have
consented to such action may, by filing written notice with the
Trustee at the Principal Office of the Trustee and upon proof of
holding as provided in Section 7.2, revoke such action so far as
concerns such Debenture (or so far as concerns the principal
amount represented by any exchanged or substituted Debenture).
Except as aforesaid any such action taken by the holder of any
Debenture shall be conclusive and binding upon such holder and
upon all future holders and owners of such Debenture, and of any
Debenture issued in exchange or substitution therefor or on
registration of transfer thereof, irrespective of whether or not
any notation in regard thereto is made upon such Debenture or
any Debenture issued in exchange or substitution therefor.
ARTICLE VIII.
SECURITYHOLDERS' MEETINGS
-------------------------
Section 8.1. Purposes of Meetings. A meeting of
Securityholders may be called at any time and from time to time
pursuant to the provisions of this Article VIII for any of the
following purposes:
(a) to give any notice to the Company or to the Trustee,
or to give any directions to the Trustee, or to consent to the
waiving of any default hereunder and its consequences, or to
take any other action authorized to be taken by Securityholders
pursuant to any of the provisions of Article V;
(b) to remove the Trustee and nominate a successor trustee
pursuant to the provisions of Article VI;
(c) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of
Section 9.2; or
(d) to take any other action authorized to be taken by or
on behalf of the holders of any specified aggregate principal
amount of such Debentures under any other provision of this
Indenture or under applicable law.
Section 8.2. Call of Meetings by Trustee. The Trustee
may at any time call a meeting of Securityholders to take any
action specified in Section 8.1, to be held at such time and at
such place as the Trustee shall determine. Notice of every
meeting of the Securityholders, setting forth the time and the
place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be mailed to holders of
Debentures affected at their addresses as they shall appear on
the Debentures Register and, if the Company is not a holder of
Debentures, to the Company. Such notice shall be mailed not
less than 20 nor more than 180 days prior to the date fixed for
the meeting.
Section 8.3. Call of Meetings by Company or
Securityholders. In case at any time the Company pursuant to a
Board Resolution, or the holders of at least 10% in aggregate
principal amount of the Debentures, as the case may be, then
outstanding, shall have requested the Trustee to call a meeting
of Securityholders, by written request setting forth in
reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have mailed the notice of
such meeting within 20 days after receipt of such request, then
the Company or such Securityholders may determine the time and
the place for such meeting and may call such meeting to take any
action authorized in Section 8.1, by mailing notice thereof as
provided in Section 8.2.
Section 8.4. Qualifications for Voting. To be entitled
to vote at any meeting of Securityholders a Person shall (a) be
a holder of one or more Debentures with respect to which the
meeting is being held or (b) a Person appointed by an instrument
in writing as proxy by a holder of one or more such Debentures.
The only Persons who shall be entitled to be present or to speak
at any meeting of
35
Securityholders shall be the Persons entitled
to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
Section 8.5. Regulations. Notwithstanding any other
provisions of this Indenture, the Trustee may make such
reasonable regulations as it may deem advisable for any meeting
of Securityholders, in regard to proof of the holding of
Debentures and of the appointment of proxies, and in regard to
the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other
evidence of the right to vote, and such other matters concerning
the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have
been called by the Company or by Securityholders as provided in
Section 8.3, in which case the Company or the Securityholders
calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by majority
vote of the meeting.
Subject to the provisions of Section 7.4, at any meeting
each holder of Debentures with respect to which such meeting is
being held or proxy therefor shall be entitled to one vote for
each $1,000.00 principal amount of Debentures held or
represented by him; provided, however, that no vote shall be
cast or counted at any meeting in respect of any Debenture
challenged as not outstanding and ruled by the chairman of the
meeting to be not outstanding. The chairman of the meeting
shall have no right to vote other than by virtue of Debentures
held by him or instruments in writing as aforesaid duly
designating him as the Person to vote on behalf of other
Securityholders. Any meeting of Securityholders duly called
pursuant to the provisions of Section 8.2 or 8.3 may be
adjourned from time to time by a majority of those present,
whether or not constituting a quorum, and the meeting may be
held as so adjourned without further notice.
Section 8.6. Voting. The vote upon any resolution
submitted to any meeting of holders of Debentures with respect
to which such meeting is being held shall be by written ballots
on which shall be subscribed the signatures of such holders or
of their representatives by proxy and the serial number or
numbers of the Debentures held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors
of votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in
triplicate of all votes cast at the meeting. A record in
duplicate of the proceedings of each meeting of Securityholders
shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more Persons having knowledge of the facts
setting forth a copy of the notice of the meeting and showing
that said notice was mailed as provided in Section 8.2. The
record shall show the serial numbers of the Debentures voting in
favor of or against any resolution. The record shall be signed
and verified by the affidavits of the permanent chairman and
secretary of the meeting and one of the duplicates shall be
delivered to the Company and the other to the Trustee to be
preserved by the Trustee, the latter to have attached thereto
the ballots voted at the meeting.
Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
Section 8.7. Quorum; Actions. The Persons entitled to
vote a majority in principal amount of the Debentures then
outstanding shall constitute a quorum for a meeting of
Securityholders; provided, however, that if any action is to be
taken at such meeting with respect to a consent, waiver,
request, demand, notice, authorization, direction or other
action which may be given by the holders of not less than a
specified percentage in principal amount of the Debentures then
outstanding, the Persons holding or representing such specified
percentage in principal amount of the Debentures then
outstanding will constitute a quorum. In the absence of a
quorum within 30 minutes of the time appointed for any such
36
meeting, the meeting shall, if convened at the request of
Securityholders, be dissolved. In any other case the meeting
may be adjourned for a period of not less than 10 days as
determined by the permanent chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any
such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days as determined by
the permanent chairman of the meeting prior to the adjournment
of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 8.2,
except that such notice need be given only once not less than 5
days prior to the date on which the meeting is scheduled to be
reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above, of the
principal amount of the Debentures then outstanding which shall
constitute a quorum.
Except as limited by the provisos in the first paragraph of
Section 9.2, any resolution presented to a meeting or adjourned
meeting duly reconvened at which a quorum is present as
aforesaid may be adopted by the affirmative vote of the holders
of a majority in principal amount of the Debentures then
outstanding; provided, however, that, except as limited by the
provisos in the first paragraph of Section 9.2, any resolution
with respect to any consent, waiver, request, demand, notice,
authorization, direction or other action which this Indenture
expressly provides may be given by the holders of not less than
a specified percentage in principal amount of the Debentures
then outstanding may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as
aforesaid only by the affirmative vote of the holders of a not
less than such specified percentage in principal amount of the
Debentures then outstanding.
Any resolution passed or decision taken at any meeting of
holders of Debentures duly held in accordance with this Section
shall be binding on all the Securityholders, whether or not
present or represented at the meeting.
ARTICLE IX.
SUPPLEMENTAL INDENTURES
-----------------------
Section 9.1. Supplemental Indentures without Consent of
Securityholders. The Company, when authorized by a Board
Resolution, and the Trustee may from time to time and at any
time enter into an indenture or indentures supplemental hereto,
without the consent of the Securityholders, for one or more of
the following purposes:
(a) to evidence the succession of another Person to the
Company, or successive successions, and the assumption by the
successor Person of the covenants, agreements and obligations of
the Company, pursuant to Article XI hereof;
(b) to add to the covenants of the Company such further
covenants, restrictions or conditions for the protection of the
holders of Debentures as the Board of Directors shall consider
to be for the protection of the holders of such Debentures, and
to make the occurrence, or the occurrence and continuance, of a
default in any of such additional covenants, restrictions or
conditions a default or an Event of Default permitting the
enforcement of all or any of the several remedies provided in
this Indenture as herein set forth; provided, however, that in
respect of any such additional covenant restriction or condition
such supplemental indenture may provide for a particular period
of grace after default (which period may be shorter or longer
than that allowed in the case of other defaults) or may provide
for an immediate enforcement upon such default or may limit the
remedies available to the Trustee upon such default;
(c) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture
which may be defective or inconsistent with any other provision
contained herein or in any supplemental indenture, or to make
such other provisions in regard to matters or
37
questions arising under this Indenture; provided that any such action
shall not materially adversely affect the interests of the holders of
the Debentures;
(d) to add to, delete from, or revise the terms of
Debentures, including, without limitation, any terms relating to
the issuance, exchange, registration or transfer of Debentures,
including to provide for transfer procedures and restrictions
substantially similar to those applicable to the Capital
Securities as required by Section 2.5 (for purposes of assuring
that no registration of Debentures is required under the
Securities Act); provided, however, that any such action shall
not adversely affect the interests of the holders of the
Debentures then outstanding (it being understood, for purposes
of this proviso, that transfer restrictions on Debentures
substantially similar to those that were applicable to Capital
Securities shall not be deemed to materially adversely affect
the holders of the Debentures);
(e) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Debentures and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee;
(f) to make any change (other than as elsewhere provided
in this paragraph) that does not adversely affect the rights of
any Securityholder in any material respect; or
(g) to provide for the issuance of and establish the form
and terms and conditions of the Debentures, to establish the
form of any certifications required to be furnished pursuant to
the terms of this Indenture or the Debentures, or to add to the
rights of the holders of Debentures.
The Trustee is hereby authorized to join with the Company
in the execution of any such supplemental indenture, to make any
further appropriate agreements and stipulations which may be
therein contained and to accept the conveyance, transfer and
assignment of any property thereunder, but the Trustee shall not
be obligated to, but may in its discretion, enter into any such
supplemental indenture which affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of
this Section 9.1 may be executed by the Company and the Trustee
without the consent of the holders of any of the Debentures at
the time outstanding, notwithstanding any of the provisions of
Section 9.2.
Section 9.2. Supplemental Indentures with Consent of
Securityholders. With the consent (evidenced as provided in
Section 7.1) of the holders of not less than a majority in
aggregate principal amount of the Debentures at the time
outstanding affected by such supplemental indenture (voting as a
class), the Company, when authorized by a Board Resolution, and
the Trustee may from time to time and at any time 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 any
supplemental indenture or of modifying in any manner the rights
of the holders of the Debentures; provided, however, that no
such supplemental indenture shall without the consent of the
holders of each Debenture then outstanding and affected thereby
(i) change the fixed maturity of any Debenture, or reduce the
principal amount thereof or any premium thereon, or reduce the
rate or extend the time of payment of interest thereon, or
reduce any amount payable on redemption thereof or make the
principal thereof or any interest or premium thereon payable in
any coin or currency other than that provided in the Debentures,
or impair or affect the right of any Securityholder to institute
suit for payment thereof or impair the right of repayment, if
any, at the option of the holder, or (ii) reduce the aforesaid
percentage of Debentures the holders of which are required to
consent to any such supplemental indenture; provided further,
however, that if the Debentures are held by a trust or a trustee
of such trust, such supplemental indenture shall not be
effective until the holders of a majority in Liquidation Amount
of Trust Securities shall have consented to such supplemental
indenture; provided further, however, that if the consent of the
38
Securityholder of each outstanding Debenture is required, such
supplemental indenture shall not be effective until each holder
of the Trust Securities shall have consented to such
supplemental indenture.
Upon the request of the Company accompanied by a Board
Resolution authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of
the consent of Securityholders as aforesaid, the Trustee shall
join with the Company in the execution of such supplemental
indenture unless such supplemental indenture affects the
Trustee's own rights, duties or immunities under this Indenture
or otherwise, in which case the Trustee may in its discretion,
but shall not be obligated to, enter into such supplemental
indenture.
Promptly after the execution by the Company and the Trustee
of any supplemental indenture pursuant to the provisions of this
Section, the Trustee shall transmit by mail, first class postage
prepaid, a notice, prepared by the Company, setting forth in
general terms the substance of such supplemental indenture, to
the Securityholders as their names and addresses appear upon the
Debenture Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental
indenture.
It shall not be necessary for the consent of the
Securityholders under this Section 9.2 to approve the particular
form of any proposed supplemental indenture, but it shall be
sufficient if such consent shall approve the substance thereof.
Section 9.3. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture pursuant to the
provisions of this Article IX, this Indenture shall be and be
deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Trustee, the
Company and the holders of Debentures shall thereafter be
determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments and all the terms
and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
Section 9.4. Notation on Debentures. Debentures
authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this
Article IX may bear a notation as to any matter provided for in
such supplemental indenture. If the Company or the Trustee
shall so determine, new Debentures so modified as to conform, in
the opinion of the Board of Directors of the Company, to any
modification of this Indenture contained in any such
supplemental indenture may be prepared and executed by the
Company, authenticated by the Trustee or the Authenticating
Agent and delivered in exchange for the Debentures then
outstanding.
Section 9.5. Evidence of Compliance of Supplemental
Indenture to be Furnished to Trustee. The Trustee, subject to
the provisions of Sections 6.1 and 6.2, shall, in addition to
the documents required by Section 14.6, receive an Officers'
Certificate and an Opinion of Counsel as conclusive evidence
that any supplemental indenture executed pursuant hereto
complies with the requirements of this Article IX. The Trustee
shall receive an Opinion of Counsel as conclusive evidence that
any supplemental indenture executed pursuant to this Article IX
is authorized or permitted by, and conforms to, the terms of
this Article IX and that it is proper for the Trustee under the
provisions of this Article IX to join in the execution thereof.
ARTICLE X.
REDEMPTION OF SECURITIES
------------------------
Section 10.1. Optional Redemption. The Company shall have
the right (subject to the receipt by the Company of prior
approval (i) if the Company is a bank holding company, from the
Federal Reserve, if then required under applicable capital
guidelines or policies of the Federal Reserve or (ii) if
39
the Company is a savings and loan holding company, from the OTS, if
then required under applicable capital guidelines or policies of
the OTS) to redeem the Debentures, in whole or in part, but in
all cases in a principal amount with integral multiples of
$1,000.00, on any March 26, June 26, September 26 or December 26
on or after June 26, 2008 (the "Redemption Date"), at the
Redemption Price.
Section 10.2. Special Event Redemption. If a Special
Event shall occur and be continuing, the Company shall have the
right (subject to the receipt by the Company of prior approval
(i) if the Company is a bank holding company, from the Federal
Reserve, if then required under applicable capital guidelines or
policies of the Federal Reserve or (ii) if the Company is a
savings and loan holding company, from the OTS, if then required
under applicable capital guidelines or policies of the OTS) to
redeem the Debentures in whole, but not in part, at any Interest
Payment Date, within 120 days following the occurrence of such
Special Event (the "Special Redemption Date") at the Special
Redemption Price. If the Special Event redemption occurs prior
to June 26, 2008, the Company shall appoint a Quotation Agent,
which initially shall be U.S. Bank, National Association or its
designee, for the purpose of performing the services
contemplated in, or by reference in, the definition of Special
Redemption Price. Any error in the calculation of the Special
Redemption Price by the Quotation Agent or the Trustee may be
corrected at any time by notice delivered to the Company and the
holders of the Debentures. Subject to the corrective rights set
forth above, all certificates, communications, opinions,
determinations, calculations, quotations and decisions given,
expressed, made or obtained for the purposes of the provisions
relating to the payment and calculation of the Special
Redemption Price on the Debentures by the Trustee or the
Quotation Agent, as the case may be, shall (in the absence of
willful default, bad faith or manifest error) be final,
conclusive and binding on the holders of the Debentures and the
Company, and no liability shall attach (except as provided
above) to the Trustee or the Quotation Agent in connection with
the exercise or non-exercise by any of them of their respective
powers, duties and discretion.
Section 10.3. Notice of Redemption; Selection of
Debentures. In case the Company shall desire to exercise the
right to redeem all, or, as the case may be, any part of the
Debentures, it shall cause to be mailed a notice of such
redemption at least 30 and not more than 60 days prior to the
Redemption Date or the Special Redemption Date to the holders of
Debentures so to be redeemed as a whole or in part at their last
addresses as the same appear on the Debenture Register. Such
mailing shall be by first class mail. The notice if mailed in
the manner herein provided shall be conclusively presumed to
have been duly given, whether or not the holder receives such
notice. In any case, failure to give such notice by mail or any
defect in the notice to the holder of any Debenture designated
for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other
Debenture.
Each such notice of redemption shall specify the CUSIP
number, if any, of the Debentures to be redeemed, the Redemption
Date or the Special Redemption Date, as applicable, the
Redemption Price or the Special Redemption Price, as applicable,
at which Debentures are to be redeemed, the place or places of
payment, that payment will be made upon presentation and
surrender of such Debentures, that interest accrued to the date
fixed for redemption will be paid as specified in said notice,
and that on and after said date interest thereon or on the
portions thereof to be redeemed will cease to accrue. If less
than all the Debentures are to be redeemed the notice of
redemption shall specify the numbers of the Debentures to be
redeemed. In case the Debentures are to be redeemed in part
only, the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that on
and after the date fixed for redemption, upon surrender of such
Debenture, a new Debenture or Debentures in principal amount
equal to the unredeemed portion thereof will be issued.
Prior to 10:00 a.m. New York City time on the Redemption
Date or Special Redemption Date, as applicable, the Company will
deposit with the Trustee or with one or more paying agents an
amount of money sufficient to redeem on the Redemption Date or
the Special Redemption Date, as applicable, all
40
the Debentures so called for redemption at the appropriate Redemption
Price or Special Redemption Price.
If all, or less than all, the Debentures are to be
redeemed, the Company will give the Trustee notice not less than
45 nor more than 60 days, respectively, prior to the Redemption
Date or Special Redemption Date, as applicable, as to the
aggregate principal amount of Debentures to be redeemed and the
Trustee shall select, in such manner as in its sole discretion
it shall deem appropriate and fair, the Debentures or portions
thereof (in integral multiples of $1,000.00) to be redeemed.
Section 10.4. Payment of Debentures Called for
Redemption. If notice of redemption has been given as provided
in Section 10.3, the Debentures or portions of Debentures with
respect to which such notice has been given shall become due and
payable on the Redemption Date or Special Redemption Date, as
applicable, and at the place or places stated in such notice at
the applicable Redemption Price or Special Redemption Price and
on and after said date (unless the Company shall default in the
payment of such Debentures at the Redemption Price or Special
Redemption Price, as applicable) interest on the Debentures or
portions of Debentures so called for redemption shall cease to
accrue. On presentation and surrender of such Debentures at a
place of payment specified in said notice, such Debentures or
the specified portions thereof shall be paid and redeemed by the
Company at the applicable Redemption Price or Special Redemption
Price.
Upon presentation of any Debenture redeemed in part only,
the Company shall execute and the Trustee shall authenticate and
make available for delivery to the holder thereof, at the
expense of the Company, a new Debenture or Debentures of
authorized denominations, in principal amount equal to the
unredeemed portion of the Debenture so presented.
ARTICLE XI.
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
-------------------------------------------------
Section 11.1. Company May Consolidate, etc., on Certain
Terms. Nothing contained in this Indenture or in the Debentures
shall prevent any consolidation or merger of the Company with or
into any other Person (whether or not affiliated with the
Company) or successive consolidations or mergers in which the
Company or its successor or successors shall be a party or
parties, or shall prevent any sale, conveyance, transfer or
other disposition of the property or capital stock of the
Company or its successor or successors as an entirety, or
substantially as an entirety, to any other Person (whether or
not affiliated with the Company, or its successor or successors)
authorized to acquire and operate the same; provided, however,
that the Company hereby covenants and agrees that, upon any such
consolidation, merger (where the Company is not the surviving
corporation), sale, conveyance, transfer or other disposition,
the due and punctual payment of the principal of (and premium,
if any) and interest on all of the Debentures in accordance with
their terms, according to their tenor, and the due and punctual
performance and observance of all the covenants and conditions
of this Indenture to be kept or performed by the Company, shall
be expressly assumed by supplemental indenture satisfactory in
form to the Trustee executed and delivered to the Trustee by the
entity formed by such consolidation, or into which the Company
shall have been merged, or by the entity which shall have
acquired such property or capital stock.
Section 11.2. Successor Entity to be Substituted. In case
of any such consolidation, merger, sale, conveyance, transfer or
other disposition and upon the assumption by the successor
entity, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the due and
punctual payment of the principal of and premium, if any, and
interest on all of the Debentures and the due and punctual
performance and observance of all of the covenants and
conditions of this Indenture to be performed or observed by the
Company, such successor entity shall succeed to and be
substituted for the Company, with the same effect as if it had
been named herein as the Company, and thereupon the predecessor
entity shall be relieved of any further liability or obligation
hereunder or upon
41
the Debentures. Such successor entity thereupon may cause to be signed,
and may issue in its own name, any or all of the Debentures issuable
hereunder which theretofore shall not have been signed by the Company
and delivered to the Trustee or the Authenticating Agent; and, upon
the order of such successor entity instead of the Company and
subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee or the Authenticating Agent
shall authenticate and deliver any Debentures which previously
shall have been signed and delivered by the officers of the
Company, to the Trustee or the Authenticating Agent for
authentication, and any Debentures which such successor entity
thereafter shall cause to be signed and delivered to the Trustee
or the Authenticating Agent for that purpose. All the
Debentures so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Debentures
theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Debentures had been issued
at the date of the execution hereof.
Section 11.3. Opinion of Counsel to be Given to
Trustee. The Trustee, subject to the provisions of Sections 6.1
and 6.2, shall receive, in addition to the Opinion of Counsel
required by Section 9.5, an Opinion of Counsel as conclusive
evidence that any consolidation, merger, sale, conveyance,
transfer or other disposition, and any assumption, permitted or
required by the terms of this Article XI complies with the
provisions of this Article XI.
ARTICLE XII.
SATISFACTION AND DISCHARGE OF INDENTURE
---------------------------------------
Section 12.1. Discharge of Indenture. When
(a) the Company shall deliver to the Trustee for
cancellation all Debentures theretofore authenticated
(other than any Debentures which shall have been
destroyed, lost or stolen and which shall have been
replaced or paid as provided in Section 2.6) and not
theretofore canceled, or
(b) all the Debentures not theretofore canceled or
delivered to the Trustee for cancellation shall have
become due and payable, or are by their terms to
become due and payable within 1 year or are to be
called for redemption within 1 year under arrangements
satisfactory to the Trustee for the giving of notice
of redemption, and the Company shall deposit with the
Trustee, in trust, funds, which shall be immediately
due and payable, sufficient to pay at maturity or upon
redemption all of the Debentures (other than any
Debentures which shall have been destroyed, lost or
stolen and which shall have been replaced or paid as
provided in Section 2.6) not theretofore canceled or
delivered to the Trustee for cancellation, including
principal and premium, if any, and interest due or to
become due to such date of maturity or redemption
date, as the case may be, but excluding, however, the
amount of any moneys for the payment of principal of,
and premium, if any, or interest on the Debentures
(1) theretofore repaid to the Company in accordance
with the provisions of Section 12.4, or (2) paid to
any state or to the District of Columbia pursuant to
its unclaimed property or similar laws,
and if in the case of either clause (a) or clause (b) the
Company shall also pay or cause to be paid all other sums
payable hereunder by the Company, then this Indenture shall
cease to be of further effect except for the provisions of
Sections 2.5, 2.6, 2.8, 3.1, 3.2, 3.4, 6.6, 6.8, 6.9 and 12.4
hereof shall survive until such Debentures shall mature and be
paid. Thereafter, Sections 6.6 and 12.4 shall survive, and the
Trustee, on demand of the Company accompanied by 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, and at the cost and expense of the Company, shall execute
proper instruments acknowledging satisfaction of and discharging
this Indenture. The Company agrees to reimburse the
42
Trustee for any costs or expenses thereafter reasonably and properly
incurred by the Trustee in connection with this Indenture or the
Debentures.
Section 12.2. Deposited Moneys to be Held in Trust by
Trustee. Subject to the provisions of Section 12.4, all moneys
deposited with the Trustee pursuant to Section 12.1 shall be
held in trust in a non-interest bearing account and applied by
it to the payment, either directly or through any paying agent
(including the Company if acting as its own paying agent), to
the holders of the particular Debentures for the payment of
which such moneys have been deposited with the Trustee, of all
sums due and to become due thereon for principal, and premium,
if any, and interest.
Section 12.3. Paying Agent to Repay Moneys Held. Upon the
satisfaction and discharge of this Indenture all moneys then
held by any paying agent of the Debentures (other than the
Trustee) shall, upon demand of the Company, be repaid to it or
paid to the Trustee, and thereupon such paying agent shall be
released from all further liability with respect to such moneys.
Section 12.4. Return of Unclaimed Moneys. Any moneys
deposited with or paid to the Trustee or any paying agent for
payment of the principal of, and premium, if any, or interest on
Debentures and not applied but remaining unclaimed by the
holders of Debentures for 2 years after the date upon which the
principal of, and premium, if any, or interest on such
Debentures, as the case may be, shall have become due and
payable, shall, subject to applicable escheatment laws, be
repaid to the Company by the Trustee or such paying agent on
written demand; and the holder of any of the Debentures shall
thereafter look only to the Company for any payment which such
holder may be entitled to collect, and all liability of the
Trustee or such paying agent with respect to such moneys shall
thereupon cease.
ARTICLE XIII.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
----------------------------------------
Section 13.1. Indenture and Debentures Solely Corporate
Obligations. No recourse for the payment of the principal of or
premium, if any, or interest on any Debenture, or for any claim
based thereon or otherwise in respect thereof, and no recourse
under or upon any obligation, covenant or agreement of the
Company in this Indenture or in any supplemental indenture, or
in any such Debenture, or because of the creation of any
indebtedness represented thereby, shall be had against any
incorporator, stockholder, employee, officer or director, as
such, past, present or future, of the Company or of any
successor Person of the Company, either directly or through the
Company or any successor Person of the Company, whether by
virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise, it being
expressly understood that all such liability is hereby expressly
waived and released as a condition of, and as a consideration
for, the execution of this Indenture and the issue of the
Debentures.
ARTICLE XIV.
MISCELLANEOUS PROVISIONS
------------------------
Section 14.1. Successors. All the covenants,
stipulations, promises and agreements of the Company in this
Indenture shall bind its successors and assigns whether so
expressed or not.
Section 14.2. Official Acts by Successor Entity. Any act
or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed with
like force and effect by the like board, committee, officer or
other authorized Person of any entity that shall at the time be
the lawful successor of the Company.
43
Section 14.3. Surrender of Company Powers. The Company by
instrument in writing executed by authority of at least 2/3
(two-thirds) of its Board of Directors and delivered to the
Trustee may surrender any of the powers reserved to the Company
and thereupon such power so surrendered shall terminate both as
to the Company, and as to any permitted successor.
Section 14.4. Addresses for Notices, etc. Any notice,
consent, direction, request, authorization, waiver or demand
which by any provision of this Indenture is required or
permitted to be given, made, furnished or served by the Trustee
or by the Securityholders on or to the Company may be given or
served in writing by being deposited postage prepaid by
registered or certified mail in a post office letter box
addressed (until another address is filed by the Company, with
the Trustee for the purpose) to the Company, One Bank Plaza,
Wheeling, West Virginia 26003, Attention: Robert H. Young. Any
notice, consent, direction, request, authorization, waiver or
demand by any Securityholder or the Company to or upon the
Trustee shall be deemed to have been sufficiently given or made,
for all purposes, if given or made in writing at the office of
the Trustee, addressed to the Trustee, 225 Asylum Street,
Goodwin Square, Hartford, Connecticut 06103 Attention: Vice
President, Corporate Trust Services Division, with a copy to the
Trustee, 1 Federal Street - 3rd Floor, Boston, Massachusetts
02110, Attention: Paul D. Allen, Corporate Trust Services
Division. Any notice, consent, direction, request,
authorization, waiver or demand on or to any Securityholder
shall be deemed to have been sufficiently given or made, for all
purposes, if given or made in writing at the address set forth
in the Debenture Register.
Section 14.5. Governing Law. This Indenture and each
Debenture shall be deemed to be a contract made under the law of
the State of New York, and for all purposes shall be governed by
and construed in accordance with the law of said State, without
regard to conflict of laws principles thereof.
Section 14.6. Evidence of Compliance with Conditions
Precedent. Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this
Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that in the opinion of the signers all
conditions 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 have been complied with.
Each certificate or opinion provided for in this Indenture
and delivered to the Trustee with respect to compliance with a
condition or covenant provided for in this Indenture shall
include (1) a statement that the person making such certificate
or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in
such certificate or opinion are based; (3) a statement that, in
the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition
has been complied with; and (4) a statement as to whether or not
in the opinion of such person, such condition or covenant has
been complied with.
Section 14.7. Non-Business Days. In any case where the
date of payment of interest on or principal of the Debentures
will be a day that is not a Business Day, the payment of such
interest on or principal of the Debentures need not be made on
such date but may be made on the next succeeding Business Day,
except that, if such Business Day is 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 original date of payment, and no
interest shall accrue for the period from and after such date.
Section 14.8. Table of Contents, Headings, etc. The table
of contents and the titles and headings of the articles and
sections of this Indenture have been inserted for convenience of
reference
44
only, are not to be considered a part hereof, and
shall in no way modify or restrict any of the terms or
provisions hereof.
Section 14.9. Execution in Counterparts. This Indenture
may be executed in any number of counterparts, each of which
shall be an original, but such counterparts shall together
constitute but one and the same instrument.
Section 14.10. Separability. In case any one or more of
the provisions contained in this Indenture or in the Debentures
shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this
Indenture or of such Debentures, but this Indenture and such
Debentures shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or
therein.
Section 14.11. Assignment. The Company will have the right
at all times to assign any of its rights or obligations under
this Indenture to a direct or indirect wholly owned Subsidiary
of the Company, provided that, in the event of any such
assignment, the Company will remain liable for all such
obligations. Subject to the foregoing, this Indenture is
binding upon and inures to the benefit of the parties hereto and
their respective successors and assigns. This Indenture may not
otherwise be assigned by the parties hereto.
Section 14.12. Acknowledgment of Rights. The Company
agrees that, with respect to any Debentures held by the Trust or
the Institutional Trustee of the Trust, if the Institutional
Trustee of the Trust fails to enforce its rights under this
Indenture as the holder of Debentures held as the assets of such
Trust after the holders of a majority in Liquidation Amount of
the Capital Securities of such Trust have so directed such
Institutional Trustee, a holder of record of such Capital
Securities may, to the fullest extent permitted by law,
institute legal proceedings directly against the Company to
enforce such Institutional Trustee's rights under this Indenture
without first instituting any legal proceedings against such
trustee or any other Person. Notwithstanding the foregoing, if
an Event of Default has occurred and is continuing and such
event is attributable to the failure of the Company to pay
interest (or premium, if any) or principal on the Debentures on
the date such interest (or premium, if any) or principal is
otherwise payable (or in the case of redemption, on the
redemption date), the Company agrees that a holder of record of
Capital Securities of the Trust may directly institute a
proceeding against the Company for enforcement of payment to
such holder directly of the principal of (or premium, if any) or
interest on the Debentures having an aggregate principal amount
equal to the aggregate Liquidation Amount of the Capital
Securities of such holder on or after the respective due date
specified in the Debentures.
ARTICLE XV.
SUBORDINATION OF DEBENTURES
---------------------------
Section 15.1. Agreement to Subordinate. The Company
covenants and agrees, and each holder of Debentures by such
Securityholder's acceptance thereof likewise covenants and
agrees, that all Debentures shall be issued subject to the
provisions of this Article XV; and each holder of a Debenture,
whether upon original issue or upon transfer or assignment
thereof, accepts and agrees to be bound by such provisions.
The payment by the Company of the principal of, and
premium, if any, and interest on all Debentures shall, to the
extent and in the manner hereinafter set forth, be subordinated
and junior in right of payment to the prior payment in full of
all Senior Indebtedness of the Company, whether outstanding at
the date of this Indenture or thereafter incurred; provided,
however, that the Debentures shall rank pari passu in right of
payment with the Company's Fixed Rate Junior Subordinated
Debentures due April 30, 2028 issued pursuant to an Indenture,
dated as of April 27, 1998, by and between American
Bancorporation, Inc. n/k/a the Company and The Bank of New York.
45
No provision of this Article XV shall prevent the
occurrence of any default or Event of Default hereunder.
Section 15.2. Default on Senior Indebtedness. In the
event and during the continuation of any default by the Company
in the payment of principal, premium, interest or any other
payment due on any Senior Indebtedness of the Company following
any grace period, or in the event that the maturity of any
Senior Indebtedness of the Company has been accelerated because
of a default and such acceleration has not been rescinded or
canceled and such Senior Indebtedness has not been paid in full,
then, in either case, no payment shall be made by the Company
with respect to the principal (including redemption) of, or
premium, if any, or interest on the Debentures.
In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee when such payment is
prohibited by the preceding paragraph of this Section 15.2, such
payment shall, subject to Section 15.7, be held in trust for the
benefit of, and shall be paid over or delivered to, the holders
of Senior Indebtedness or their respective representatives, or
to the trustee or trustees under any indenture pursuant to which
any of such Senior Indebtedness may have been issued, as their
respective interests may appear, but only to the extent that the
holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee in writing
within 90 days of such payment of the amounts then due and owing
on the Senior Indebtedness and only the amounts specified in
such notice to the Trustee shall be paid to the holders of
Senior Indebtedness.
Section 15.3. Liquidation, Dissolution, Bankruptcy. Upon
any payment by the Company or distribution of assets of the
Company of any kind or character, whether in cash, property or
securities, to creditors upon any dissolution or winding-up or
liquidation or reorganization of the Company, whether voluntary
or involuntary or in bankruptcy, insolvency, receivership or
other proceedings, all amounts due upon all Senior Indebtedness
of the Company shall first be paid in full, or payment thereof
provided for in money in accordance with its terms, before any
payment is made by the Company, on account of the principal (and
premium, if any) or interest on the Debentures. Upon any such
dissolution or winding-up or liquidation or reorganization, any
payment by the Company, or distribution of assets of the Company
of any kind or character, whether in cash, property or
securities, to which the Securityholders or the Trustee would be
entitled to receive from the Company, except for the provisions
of this Article XV, shall be paid by the Company, or by any
receiver, trustee in bankruptcy, liquidating trustee, agent or
other Person making such payment or distribution, or by the
Securityholders or by the Trustee under this Indenture if
received by them or it, directly to the holders of Senior
Indebtedness (pro rata to such holders on the basis of the
respective amounts of Senior Indebtedness held by such holders,
as calculated by the Company) or their representative or
representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such
Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay such Senior
Indebtedness in full, in money or money's worth, after giving
effect to any concurrent payment or distribution to or for the
holders of such Senior Indebtedness, before any payment or
distribution is made to the Securityholders or to the Trustee.
In the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, prohibited
by the foregoing, shall be received by the Trustee before all
Senior Indebtedness is paid in full, or provision is made for
such payment in money in accordance with its terms, such payment
or distribution shall be held in trust for the benefit of and
shall be paid over or delivered to the holders of such Senior
Indebtedness or their representative or representatives, or to
the trustee or trustees under any indenture pursuant to which
any instruments evidencing such Senior Indebtedness may have
been issued, as their respective interests may appear, as
calculated by the Company, for application to the payment of all
Senior Indebtedness, remaining unpaid to the extent necessary to
pay such Senior Indebtedness in full in money in accordance
46
with its terms, after giving effect to any concurrent payment or
distribution to or for the benefit of the holders of such Senior
Indebtedness.
For purposes of this Article XV, the words "cash, property
or securities" shall not be deemed to include shares of stock of
the Company as reorganized or readjusted, or securities of the
Company or any other corporation provided for by a plan of
reorganization or readjustment, the payment of which is
subordinated at least to the extent provided in this Article XV
with respect to the Debentures to the payment of all Senior
Indebtedness, that may at the time be outstanding, provided that
(i) such Senior Indebtedness is assumed by the new corporation,
if any, resulting from any such reorganization or readjustment,
and (ii) the rights of the holders of such Senior Indebtedness
are not, without the consent of such holders, altered by such
reorganization or readjustment. The consolidation of the
Company with, or the merger of the Company into, another
corporation or the liquidation or dissolution of the Company
following the conveyance or transfer of its property as an
entirety, or substantially as an entirety, to another
corporation upon the terms and conditions provided for in
Article XI of this Indenture shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of
this Section if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the
conditions stated in Article XI of this Indenture. Nothing in
Section 15.2 or in this Section shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 6.6 of
this Indenture.
Section 15.4. Subrogation. Subject to the payment in full
of all Senior Indebtedness, the Securityholders shall be
subrogated to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of cash,
property or securities of the Company, applicable to such Senior
Indebtedness until the principal of (and premium, if any) and
interest on the Debentures shall be paid in full. For the
purposes of such subrogation, no payments or distributions to
the holders of such Senior Indebtedness of any cash, property or
securities to which the Securityholders or the Trustee would be
entitled except for the provisions of this Article XV, and no
payment over pursuant to the provisions of this Article XV to or
for the benefit of the holders of such Senior Indebtedness by
Securityholders or the Trustee, shall, as between the Company,
its creditors other than holders of Senior Indebtedness of the
Company, and the holders of the Debentures be deemed to be a
payment or distribution by the Company to or on account of such
Senior Indebtedness. It is understood that the provisions of
this Article XV are and are intended solely for the purposes of
defining the relative rights of the holders of the Securities,
on the one hand, and the holders of such Senior Indebtedness, on
the other hand.
Nothing contained in this Article XV or elsewhere in this
Indenture or in the Debentures is intended to or shall impair,
as between the Company, its creditors other than the holders of
Senior Indebtedness, and the holders of the Debentures, the
obligation of the Company, which is absolute and unconditional,
to pay to the holders of the Debentures the principal of (and
premium, if any) and interest on the Debentures as and when the
same shall become due and payable in accordance with their
terms, or is intended to or shall affect the relative rights of
the holders of the Debentures and creditors of the Company,
other than the holders of Senior Indebtedness, nor shall
anything herein or therein prevent the Trustee or the holder of
any Debenture from exercising all remedies otherwise permitted
by applicable law upon default under this Indenture, subject to
the rights, if any, under this Article XV of the holders of such
Senior Indebtedness in respect of cash, property or securities
of the Company, received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article XV, the Trustee, subject to the
provisions of Article VI of this Indenture, and the
Securityholders shall be entitled to conclusively rely upon any
order or decree made by any court of competent jurisdiction in
which such dissolution, winding-up, liquidation or
reorganization proceedings are pending, or a certificate of the
receiver, trustee in bankruptcy, liquidation trustee, agent or
other Person making such payment or distribution, delivered to
the Trustee or to the Securityholders, for the purposes of
ascertaining the
47
Persons entitled to participate in such distribution, the holders
of Senior Indebtedness and other indebtedness of the Company, the
amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to
this Article XV.
Section 15.5. Trustee to Effectuate Subordination. Each
Securityholder by such Securityholder's acceptance thereof
authorizes and directs the Trustee on such Securityholder's
behalf to take such action as may be necessary or appropriate to
effectuate the subordination provided in this Article XV and
appoints the Trustee such Securityholder's attorney-in-fact for
any and all such purposes.
Section 15.6. Notice by the Company. The Company shall
give prompt written notice to a Responsible Officer of the
Trustee at the Principal Office of the Trustee of any fact known
to the Company that would prohibit the making of any payment of
monies to or by the Trustee in respect of the Debentures
pursuant to the provisions of this Article XV. Notwithstanding
the provisions of this Article XV 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 of monies to or by the Trustee in respect of the
Debentures pursuant to the provisions of this Article XV, unless
and until a Responsible Officer of the Trustee at the Principal
Office of the Trustee shall have received written notice thereof
from the Company or a holder or holders of Senior Indebtedness
or from any trustee therefor; and before the receipt of any such
written notice, the Trustee, subject to the provisions of
Article VI of this Indenture, shall be entitled in all respects
to assume that no such facts exist; provided, however, that if
the Trustee shall not have received the notice provided for in
this Section at least 2 Business Days prior to the date upon
which by the terms hereof any money may become payable for any
purpose (including, without limitation, the payment of the
principal of (or premium, if any) or interest on any Debenture),
then, anything herein contained to the contrary notwithstanding,
the Trustee shall have full power and authority to receive such
money and to apply the same to the purposes for which they were
received, and shall not be affected by any notice to the
contrary that may be received by it within 2 Business Days prior
to such date.
The Trustee, subject to the provisions of Article VI of
this Indenture, shall be entitled to conclusively rely on the
delivery to it of a written notice by a Person representing
himself to be a holder of Senior Indebtedness (or a trustee or
representative on behalf of such holder), to establish that such
notice has been given by a holder of such Senior Indebtedness or
a trustee or representative on behalf of any such holder or
holders. 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 such Senior Indebtedness to
participate in any payment or distribution pursuant to this
Article XV, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the
amount of such Senior Indebtedness held by such Person, the
extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the
rights of such Person under this Article XV, 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 15.7. Rights of the Trustee; Holders of Senior
Indebtedness. The Trustee in its individual capacity shall be
entitled to all the rights set forth in this Article XV in
respect of any Senior Indebtedness at any time held by it, to
the same extent as any other holder of Senior Indebtedness, and
nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this
Article XV, and no implied covenants or obligations with respect
to the holders of such Senior Indebtedness shall be read into
this Indenture against the Trustee. The Trustee shall not be
deemed to owe any fiduciary duty to the holders of such Senior
Indebtedness and, subject to the provisions of Article VI of
this Indenture, the
48
Trustee shall not be liable to any holder of such Senior Indebtedness
if it shall pay over or deliver to Securityholders, the Company or
any other Person money or assets to which any holder of such Senior
Indebtedness shall be entitled by virtue of this Article XV or otherwise.
Nothing in this Article XV shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 6.6.
Section 15.8. Subordination May Not Be Impaired. No right
of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act
on the part of the Company, or by any act or failure to act, in
good faith, by any such holder, or by any 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 otherwise be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time
and from time to time, without the consent of or notice to the
Trustee or the Securityholders, without incurring responsibility
to the Securityholders and without impairing or releasing the
subordination provided in this Article XV or the obligations
hereunder of the holders of the Debentures to the holders of
such Senior Indebtedness, do any one or more of the following:
(i) change the manner, place or terms of payment or extend the
time of payment of, or renew or alter, such Senior Indebtedness,
or otherwise amend or supplement in any manner such Senior
Indebtedness or any instrument evidencing the same or any
agreement under which such Senior Indebtedness is outstanding;
(ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing such Senior
Indebtedness; (iii) release any Person liable in any manner for
the collection of such Senior Indebtedness; and (iv) exercise or
refrain from exercising any rights against the Company, and any
other Person.
Signatures appear on the following page
49
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed by their respective officers
thereunto duly authorized, 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
U.S. BANK NATIONAL ASSOCIATION, as
Trustee
By /s/ Paul D. Allen
--------------------------------
Name: Paul D. Allen
Title: Vice President
50
EXHIBIT A
FORM OF FIXED/FLOATING RATE JUNIOR SUBORDINATED DEFERRABLE
INTEREST DEBENTURE
[FORM OF FACE OF SECURITY]
THIS SECURITY IS NOT A SAVINGS ACCOUNT OR DEPOSIT AND IT IS
NOT INSURED BY THE UNITED STATES OR ANY AGENCY OR FUND OF THE
UNITED STATES, INCLUDING THE FEDERAL DEPOSIT INSURANCE
CORPORATION.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), ANY STATE
SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAW. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAWS. THE HOLDER OF THIS SECURITY
BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER THIS SECURITY ONLY (A) TO THE COMPANY, (B) PURSUANT TO
A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT, (C) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A SO LONG AS THIS SECURITY
IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A IN ACCORDANCE WITH
RULE 144A, (D) TO A NON-U.S. PERSON IN AN OFFSHORE TRANSACTION
IN ACCORDANCE WITH RULE 903 OR RULE 904 (AS APPLICABLE) OF
REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A) OF
RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS
SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND
NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT
TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO IT IN ACCORDANCE WITH THE INDENTURE,
A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO
AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE
BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR
ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (EACH
A "PLAN"), OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN
ASSETS" BY REASON OF ANY PLAN'S INVESTMENT IN THE ENTITY, AND NO
PERSON INVESTING "PLAN ASSETS" OF ANY PLAN MAY ACQUIRE OR HOLD
THE SECURITIES OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR
HOLDER IS ELIGIBLE FOR EXEMPTIVE RELIEF AVAILABLE UNDER U.S.
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 96-
23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION
OR ITS PURCHASE AND HOLDING OF THIS SECURITY IS NOT PROHIBITED BY
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SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT
TO SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THE
SECURITIES OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE
REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT EITHER (i)
IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF SECTION
3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS
APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY
USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE
SUCH PURCHASE, OR (ii) SUCH PURCHASE WILL NOT RESULT IN A
PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION
4975 OF THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR
ADMINISTRATIVE EXEMPTION.
THIS SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN
BLOCKS HAVING AN AGGREGATE PRINCIPAL AMOUNT OF NOT LESS THAN
$100,000.00 AND MULTIPLES OF $1,000.00 IN EXCESS THEREOF. ANY
ATTEMPTED TRANSFER OF THIS SECURITY IN A BLOCK HAVING AN
AGGREGATE PRINCIPAL AMOUNT OF LESS THAN $100,000.00 SHALL BE
DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER.
THE HOLDER OF THIS SECURITY AGREES THAT IT WILL COMPLY WITH
THE FOREGOING RESTRICTIONS.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO
THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER
INFORMATION AS MAY BE REQUIRED BY THE INDENTURE TO CONFIRM THAT
THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
Fixed/Floating Rate Junior Subordinated Deferrable Interest Debenture
of
Wesbanco, Inc.
June 26, 2003
Wesbanco, Inc., a West Virginia corporation (the "Company"
which term includes any successor Person under the Indenture
hereinafter referred to), for value received promises to pay to
U.S. Bank National Association, not in its individual capacity
but solely as Institutional Trustee for Wesbanco, Inc. Capital
Statutory Trust III (the "Holder") or registered assigns, the
principal sum of seventeen million five hundred twenty-six
thousand dollars ($17,526,000.00) on June 26, 2033, and to pay
interest on said principal sum from June 26, 2003, or from the
most recent interest payment date (each such date, an "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 26, June 26, September 26 and December 26 of
each year commencing on September 26, 2003, at an annual rate
equal to 5.55% beginning on (and including) the date of original
issuance and ending on (but excluding) June 26, 2008 and at an
annual rate for each successive Distribution Period beginning on
(and including) June 26, 2008, and each succeeding Interest
Payment Date, and ending on (but excluding) the next succeeding
Interest Payment Date, equal to 3-Month LIBOR, determined as
described below, plus 3.10% (the "Coupon Rate"), applied to the
principal amount hereof, until the principal hereof is paid or
duly provided for or made available for payment, and on any
overdue principal and (without duplication and to the extent
that payment of such interest is enforceable under applicable
law) on any overdue installment of interest (including
Additional Interest) at the Interest Rate in effect for each
applicable period, compounded quarterly, from the dates such
amounts are due until they are paid or made available for
payment. The amount of interest payable
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(i) for any Distribution Period commencing on or after the date of
original issuance but before June 26, 2008 will be computed on the basis
of a 360-day year of twelve 30-day months, and (ii) for the
Distribution Period commencing on or after June 26, 2008 and
each succeeding Distribution Period will be computed on the
basis of the actual number of days in the Distribution Period
concerned divided by 360. In the event that any date on which
interest is payable on this Debenture is not a Business Day,
then a payment of the interest payable on such date will be made
on the next succeeding day which is a Business Day (and without
any interest or other payment in respect of any such delay),
except that, if such Business Day is 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 date the payment was originally
payable. The interest installment so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name
this Debenture (or one or more Predecessor Securities) is
registered at the close of business on the regular record date
for such interest installment, which shall be fifteen days prior
to the day on which the relevant Interest Payment Date occurs.
Any such interest installment not so punctually paid or duly
provided for shall forthwith cease to be payable to the Holder
on such regular record date and may be paid to the Person in
whose name this Debenture (or one or more Predecessor
Securities) is registered at the close of business on a special
record date.
"3-Month LIBOR" as used herein, means the London interbank
offered interest rate for three-month U.S. dollar deposits
determined by the Trustee in the following order of priority:
(i) the rate (expressed as a percentage per annum) for U.S.
dollar deposits having a three-month maturity that appears on
Telerate Page 3750 as of 11:00 a.m. (London time) on the related
Determination Date ("Telerate Page 3750" means the display
designated as "Page 3750" on the Dow Jones Telerate Service or
such other page as may replace Page 3750 on that service or such
other service or services as may be nominated by the British
Bankers' Association as the information vendor for the purpose
of displaying London interbank offered rates for U.S. dollar
deposits); (ii) if such rate cannot be identified on the related
Determination Date, the Trustee will request the principal
London offices of four leading banks in the London interbank
market to provide such banks' offered quotations (expressed as
percentages per annum) to prime banks in the London interbank
market for U.S. dollar deposits having a three-month maturity as
of 11:00 a.m. (London time) on such Determination Date. If at
least two quotations are provided, 3-Month LIBOR will be the
arithmetic mean of such quotations; (iii) if fewer than two such
quotations are provided as requested in clause (ii) above, the
Trustee will request four major New York City banks to provide
such banks' offered quotations (expressed as percentages per
annum) to leading European banks for loans in U.S. dollars as of
11:00 a.m. (London time) on such Determination Date. If at
least two such quotations are provided, 3-Month LIBOR will be
the arithmetic mean of such quotations; and (iv) if fewer than
two such quotations are provided as requested in clause (iii)
above, 3-Month LIBOR will be a 3-Month LIBOR determined with
respect to the Distribution Period immediately preceding such
current Distribution Period. If the rate for U.S. dollar
deposits having a three-month maturity that initially appears on
Telerate Page 3750 as of 11:00 a.m. (London time) on the related
Determination Date is superseded on the Telerate Page 3750 by a
corrected rate by 12:00 noon (London time) on such Determination
Date, then the corrected rate as so substituted on the
applicable page will be the applicable 3-Month LIBOR for such
Determination Date. As used herein, "Determination Date" means
the date that is two London Banking Days (i.e., a business day
in which dealings in deposits in U.S. dollars are transacted in
the London interbank market) preceding the commencement of the
relevant Distribution Period.
The Interest Rate for any Distribution Period will at no
time be higher than the maximum rate then permitted by New York
law as the same may be modified by United States law.
All percentages resulting from any calculations on the
Debentures will be rounded, if necessary, to the nearest one
hundred-thousandth of a percentage point, with five one-
millionths of a percentage
A-1-3
point rounded upward (e.g., 9.876545% (or .09876545) being rounded
to 9.87655% (or .0987655), and all dollar amounts used in or resulting
from such calculation will be rounded to the nearest cent (with one-half
cent being rounded upward)).
The principal of and interest on this Debenture shall be
payable at the office or agency of the Trustee (or other paying
agent appointed by the Company) maintained for that purpose in
any coin or currency of the United States of America that at the
time of payment is legal tender for payment of public and
private debts; provided, however, that payment of interest may
be made by check mailed to the registered holder at such address
as shall appear in the Debenture Register if a request for a
wire transfer by such holder has not been received by the
Company or by wire transfer to an account appropriately
designated by the holder hereof. Notwithstanding the foregoing,
so long as the holder of this Debenture is the Institutional
Trustee, the payment of the principal of and interest on this
Debenture will be made in immediately available funds at such
place and to such account as may be designated by the Trustee.
So long as no Event of Default has occurred and is
continuing, the Company shall have the right, from time to time,
and without causing an Event of Default, to defer payments of
interest on the Debentures by extending the interest payment
period on the Debentures at any time and from time to time
during the term of the Debentures, for up to 20 consecutive
quarterly periods (each such extended interest payment period,
an "Extension Period"), during which Extension Period no
interest (including Additional Interest) shall be due and
payable (except any Additional Sums that may be due and
payable). No Extension Period may end on a date other than an
Interest Payment Date. During an Extension Period, interest
will continue to accrue on the Debentures, and interest on such
accrued interest will accrue at an annual rate equal to the
Interest Rate in effect for such Extension Period, compounded
quarterly from the date such interest would have been payable
were it not for the Extension Period, to the extent permitted by
law (such interest referred to herein as "Additional Interest").
At the end of any such Extension Period the Company shall pay
all interest then accrued and unpaid on the Debentures (together
with Additional Interest thereon); provided, however, that no
Extension Period may extend beyond the Maturity Date; provided
further, however, that during any such Extension Period, the
Company shall not and shall not permit any Affiliate to engage
in any of the activities or transactions described on the
reverse side hereof and in the Indenture. Prior to the
termination of any Extension Period, the Company may further
extend such period, provided that such period together with all
such previous and further consecutive extensions thereof shall
not exceed 20 consecutive quarterly periods, or extend beyond
the Maturity Date. Upon the termination of any Extension Period
and upon the payment of all accrued and unpaid interest and
Additional Interest, the Company may commence a new Extension
Period, subject to the foregoing requirements. No interest or
Additional 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. The
Company must give the Trustee notice of its election to begin or
extend an Extension Period at least 5 Business Days prior to the
regular record date (as such term is used in Section 2.8 of the
Indenture) immediately preceding the Interest Payment Date with
respect to which interest on the Debentures would have been
payable except for the election to begin or extend such
Extension Period.
The indebtedness evidenced by this Debenture is, to the
extent provided in the Indenture, subordinate and junior in
right of payment to the prior payment in full of all Senior
Indebtedness, and this Debenture is issued subject to the
provisions of the Indenture with respect thereto. Each holder
of this Debenture, 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 action as may be
necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Trustee his or
her attorney-in-fact for any and all such purposes. Each holder
hereof, by his or her acceptance hereof, hereby waives all
notice of the acceptance of the subordination provisions
contained herein and in the Indenture by each
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holder of Senior Indebtedness, whether now outstanding or hereafter
incurred, and waives reliance by each such holder upon said provisions.
This Debenture shall not be entitled to any benefit under
the Indenture hereinafter referred to, be valid or become
obligatory for any purpose until the certificate of
authentication hereon shall have been signed by or on behalf of
the Trustee.
The provisions of this Debenture are continued on the
reverse side hereof and such provisions shall for all purposes
have the same effect as though fully set forth at this place.
A-1-5
IN WITNESS WHEREOF, the Company has duly executed this certificate.
WESBANCO, INC.
By
------------------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Debentures referred to in the within-mentioned Indenture.
U.S. Bank National Association, as Trustee
By:
---------------------------------------
Authorized Officer
A-1-6
[FORM OF REVERSE OF DEBENTURE]
This Debenture is one of the fixed/floating rate junior
subordinated deferrable interest debentures of the Company, all
issued or to be issued under and pursuant to the Indenture dated
as of June 26, 2003 (the "Indenture"), duly executed and
delivered between the Company and the Trustee, to which
Indenture reference is hereby made for a description of the
rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the
holders of the Debentures. The Debentures are limited in
aggregate principal amount as specified in the Indenture.
Upon the occurrence and continuation of a Special Event
prior to June 26, 2008, the Company shall have the right to
redeem the Debentures in whole, but not in part, at any Interest
Payment Date, within 120 days following the occurrence of such
Special Event, at the Special Redemption Price.
In addition, the Company shall have the right to redeem the
Debentures, in whole or in part, but in all cases in a principal
amount with integral multiples of $1,000.00, on any Interest
Payment Date on or after June 26, 2008, at the Redemption Price.
Prior to 10:00 a.m. New York City time on the Redemption
Date or Special Redemption Date, as applicable, the Company will
deposit with the Trustee or with one or more paying agents an
amount of money sufficient to redeem on the Redemption Date or
the Special Redemption Date, as applicable, all the Debentures
so called for redemption at the appropriate Redemption Price or
Special Redemption Price.
If all, or less than all, the Debentures are to be
redeemed, the Company will give the Trustee notice not less than
45 nor more than 60 days, respectively, prior to the Redemption
Date or Special Redemption Date, as applicable, as to the
aggregate principal amount of Debentures to be redeemed and the
Trustee shall select, in such manner as in its sole discretion
it shall deem appropriate and fair, the Debentures or portions
thereof (in integral multiples of $1,000.00) to be redeemed.
Notwithstanding the foregoing, any redemption of Debentures
by the Company shall be subject to the receipt of any and all
required regulatory approvals.
In case an Event of Default shall have occurred and be
continuing, upon demand of the Trustee, the principal of all of
the Debentures shall become due and payable in the manner, with
the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions permitting the Company
and the Trustee, with the consent of the holders of not less
than a majority in aggregate principal amount of the Debentures
at the time outstanding, to execute supplemental indentures for
the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or
of any supplemental indenture or of modifying in any manner the
rights of the holders of the Debentures; provided, however, that
no such supplemental indenture shall without the consent of the
holders of each Debenture then outstanding and affected thereby
(i) change the fixed maturity of any Debenture, or reduce the
principal amount thereof or any premium thereon, or reduce the
rate or extend the time of payment of interest thereon, or
reduce any amount payable on redemption thereof or make the
principal thereof or any interest or premium thereon payable in
any coin or currency other than that provided in the Debentures,
or impair or affect the right of any Securityholder to institute
suit for payment thereof or impair the right of repayment, if
any, at the option of the holder, or (ii) reduce the aforesaid
percentage of Debentures the holders of which are required to
consent to any such supplemental indenture.
The Indenture also contains provisions permitting the
holders of a majority in aggregate principal amount of the
Debentures at the time outstanding on behalf of the holders of
all of the Debentures to
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waive (or modify any previously granted waiver of) any past default
or Event of Default, and its consequences, except a default (a) in the
payment of principal of, premium, if any, or interest on any of the
Debentures, (b) in respect of covenants or provisions hereof or of the
Indenture which cannot be modified or amended without the
consent of the holder of each Debenture affected, or (c) in
respect of the covenants contained in Section 3.9 of the
Indenture; provided, however, that if the Debentures are held by
the Trust or a trustee of such trust, such waiver or
modification to such waiver shall not be effective until the
holders of a majority in Liquidation Amount of Trust Securities
of the Trust shall have consented to such waiver or modification
to such waiver, provided, further, that if the consent of the
holder of each outstanding Debenture is required, such waiver
shall not be effective until each holder of the Trust Securities
of the Trust shall have consented to such waiver. Upon any such
waiver, the default covered thereby shall be deemed to be cured
for all purposes of the Indenture and the Company, the Trustee
and the holders of the Debentures shall be restored to their
former positions and rights hereunder, respectively; but no such
waiver shall extend to any subsequent or other default or Event
of Default or impair any right consequent thereon. Whenever any
default or Event of Default hereunder shall have been waived as
permitted by the Indenture, said default or Event of Default
shall for all purposes of the Debentures and the Indenture be
deemed to have been cured and to be not continuing.
No reference herein to the Indenture and no provision of
this Debenture or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and premium, if any, and interest,
including Additional Interest, on this Debenture at the time and
place and at the rate and in the money herein prescribed.
The Company has agreed that if Debentures are initially
issued to the Trust or a trustee of such Trust in connection
with the issuance of Trust Securities by the Trust (regardless
of whether Debentures continue to be held by such Trust) and
(i) there shall have occurred and be continuing an Event of
Default, (ii) the Company shall be in default with respect to
its payment of any obligations under the Capital Securities
Guarantee, or (iii) the Company shall have given notice of its
election to defer payments of interest on the Debentures by
extending the interest payment period as provided herein and
such Extension Period, or any extension thereof, shall be
continuing, then the Company shall not, and shall not allow any
Affiliate of the Company to, (x) 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 its Affiliates' capital stock (other than
payments of dividends or distributions to the Company) or make
any guarantee payments with respect to the foregoing or (y) make
any payment of principal of or interest or premium, if any, on
or repay, repurchase or redeem any debt securities of the
Company or any Affiliate that rank pari passu in all respects
with or junior in interest to the Debentures (other than, with
respect to clauses (x) and (y) above, (1) 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 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, if any, (2) as a result of any 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, (3) 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, (4) any declaration
of a dividend in connection with any stockholders' rights plan,
or the issuance of rights, stock or other property under any
stockholders' rights plan, or the redemption or repurchase of
rights pursuant thereto, (5) 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 and
any
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cash payments in lieu of fractional shares issued in
connection therewith, or (6) payments under the Capital
Securities Guarantee).
The Debentures are issuable only in registered,
certificated form without coupons and in minimum denominations
of $100,000.00 and any multiple of $1,000.00 in excess thereof.
As provided in the Indenture and subject to the transfer
restrictions and limitations as may be contained herein and
therein from time to time, this Debenture is transferable by the
holder hereof on the Debenture Register of the Company. Upon
due presentment for registration of transfer of any Debenture at
the Principal Office of the Trustee or at any office or agency
of the Company maintained for such purpose as provided in
Section 3.2 of the Indenture, the Company shall execute, the
Company or the Trustee shall register and the Trustee or the
Authenticating Agent shall authenticate and make available for
delivery in the name of the transferee or transferees a new
Debenture for a like aggregate principal amount. All Debentures
presented for registration of transfer or for exchange or
payment shall (if so required by the Company or the Trustee or
the Authenticating Agent) be duly endorsed by, or be accompanied
by a written instrument or instruments of transfer in form
satisfactory to, the Company and the Trustee or the
Authenticating Agent duly executed by the holder or his attorney
duly authorized in writing. No service charge shall be made for
any exchange or registration of transfer of Debentures, but the
Company or the Trustee may require payment of a sum sufficient
to cover any tax, fee or other governmental charge that may be
imposed in connection therewith.
Prior to due presentment for registration of transfer of
any Debenture, the Company, the Trustee, any Authenticating
Agent, any paying agent, any transfer agent and any Debenture
registrar may deem the Person in whose name such Debenture shall
be registered upon the Debenture Register to be, and may treat
him as, the absolute owner of such Debenture (whether or not
such Debenture shall be overdue) for the purpose of receiving
payment of or on account of the principal of, premium, if any,
and interest on such Debenture and for all other purposes; and
neither the Company nor the Trustee nor any Authenticating Agent
nor any paying agent nor any transfer agent nor any Debenture
registrar shall be affected by any notice to the contrary. All
such payments so made to any holder for the time being or upon
his order shall be valid, and, to the extent of the sum or sums
so paid, effectual to satisfy and discharge the liability for
moneys payable upon any such Debenture.
No recourse for the payment of the principal of or premium,
if any, or interest on any Debenture, or for any claim based
thereon or otherwise in respect thereof, and no recourse under
or upon any obligation, covenant or agreement of the Company in
the Indenture or in any supplemental indenture, or in any such
Debenture, or because of the creation of any indebtedness
represented thereby, shall be had against any incorporator,
stockholder, employee, officer or director, as such, past,
present or future, of the Company or of any successor Person of
the Company, either directly or through the Company or any
successor Person of the Company, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise, it being expressly
understood that all such liability is hereby expressly waived
and released as a condition of, and as a consideration for, the
execution of the Indenture and the issue of the Debentures.
Capitalized terms used and not defined in this Debenture
shall have the meanings assigned in the Indenture dated as of
the date of original issuance of this Debenture between the
Trustee and the Company.
THE INDENTURE AND THE DEBENTURES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES THEREOF.
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