Exhibit 4.4
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COMMUNITY TRUST BANCORP, INC.
AND
STATE STREET BANK AND TRUST COMPANY,
AS TRUSTEE
INDENTURE
% SUBORDINATED DEBENTURES
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, 1997
TABLE OF CONTENTS
Section Page
1. Definitions............................................................. 2
1.1 Definitions of Terms................................................ 2
2. Issue, Description, Terms, Conditions, Registration And Exchange Of The
Debentures....................................................... 9
2.1 Designation and Principal Amount.................................... 9
2.2 Maturity............................................................ 9
2.3 Form and Payment.................................................... 10
2.4 Interest............................................................ 11
2.5 Execution and Authentications....................................... 11
2.6 Registration of Transfer and Exchange............................... 12
2.7 Temporary Securities................................................ 13
2.8 Mutilated, Destroyed, Lost or Stolen Securities..................... 14
2.9 Cancellation........................................................ 14
2.10 Benefit of Indenture............................................... 15
2.11 Authenticating Agent............................................... 15
3. Redemption Of Debentures................................................ 16
3.1 Redemption.......................................................... 16
3.2 Special Event Redemption............................................ 16
3.3 Optional Redemption by Company...................................... 16
3.4 Notice of Redemption................................................ 17
3.5 Payment Upon Redemption............................................. 18
3.6 No Sinking Fund..................................................... 18
4. Extension of Interest Payment Period.................................... 18
4.1 Extension of Interest Payment Period................................ 19
4.2 Notice of Extension................................................. 19
4.3 Limitation of Transactions.......................................... 20
5. Particular Covenants Of The Company..................................... 20
5.1 Payment of Principal and Interest................................... 20
5.2 Maintenance of Agency............................................... 20
5.3 Paying Agents....................................................... 20
5.4 Appointment to Fill Vacancy in Office of Trustee.................... 22
5.5 Compliance with Consolidation Provisions............................ 22
5.6 Limitation on Dividends; Transactions with Affiliates............... 22
5.7 Covenants as to CTBI Trust.......................................... 22
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TABLE OF CONTENTS
Section Page
6. Securityholders' Lists And Reports By The Company And The Trustee....... 23
6.1 Company to Furnish Trustee Names and Addresses of Securityholders... 23
6.2 Preservation of Information Communications with Securityholders..... 23
6.3 Reports by the Company.............................................. 23
6.4 Reports by the Trustee.............................................. 24
7. Remedies Of The Trustee And Securityholders On Event Of Default......... 24
7.1 Events of Default................................................... 24
7.2 Collection of Indebtedness and Suits for Enforcement by Trustee..... 26
7.3 Application of Moneys Collected..................................... 28
7.4 Limitation on Suits................................................. 28
7.5 Rights and Remedies Cumulative; Delay or Omission Not Waiver........ 29
7.6 Control by Securityholders.......................................... 29
7.7 Undertaking to Pay Costs............................................ 30
8. Form of Debenture and Original Issue.................................... 30
8.1 Form of Debenture................................................... 30
8.2 Original Issue of Debentures........................................ 30
9. Concerning The Trustee.................................................. 31
9.1 Certain Duties and Responsibilities of Trustee...................... 31
9.2 Notice of Defaults.................................................. 32
9.3 Certain Rights of Trustee........................................... 32
9.4 Trustee Not Responsible for Recitals or Issuance of Securities...... 33
9.5 May Hold Securities................................................. 34
9.6 Monies Held in Trust................................................ 34
9.7 Compensation and Reimbursement...................................... 34
9.8 Reliance on Officers' Certification................................. 34
9.9 Disqualification: Conflicting Interests............................. 35
9.10 Corporate Trustee Required; Eligibility............................ 35
9.11 Resignation and Removal; Appointment of Successor.................. 35
9.12 Acceptance of Appointment by Successor............................. 36
9.13 Merger, Conversion, Consolidation or Succession to Business........ 37
9.14 Preferential Collection of Claims Against the Company.............. 37
10. Concerning The Securityholders......................................... 38
10.1 Evidence of Action by Securityholders.............................. 38
10.2 Proof of Execution by Securityholders.............................. 38
10.3 Who May Be Deemed Owners........................................... 38
10.4 Certain Securities Owned by Company Disregarded.................... 39
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TABLE OF CONTENTS
Section Page
10.5 Actions Binding on Future Securityholders........................... 39
11. Supplemental Indentures................................................. 40
11.1 Supplemental Indentures Without the Consent of Security holders..... 40
11.2 Supplement Indentures with Consent of Securityholders............... 41
11.3 Effect of Supplemental Indentures................................... 41
11.4 Securities Affected by Supplemental Indentures...................... 42
11.5 Execution of Supplemental Indentures................................ 42
12. Successor Corporation................................................... 42
12.1 Company May Consolidate, Etc........................................ 42
12.2 Successor Corporation Substituted................................... 43
12.3 Evidence of Consolidation, Etc. to Trustee.......................... 43
13. Satisfaction And Discharge.............................................. 43
13.1 Satisfaction and Discharge of Indenture............................. 43
13.2 Discharge of Obligations............................................ 44
13.3 Deposited Moneys to be Held in Trust................................ 44
13.4 Payment of Monies Held by Paying Agents............................. 44
13.5 Repayment to Company................................................ 45
14. Immunity of Incorporators, Stockholders, Officers And Directors......... 45
14.1 No Recourse......................................................... 45
15. Miscellaneous Provisions................................................ 45
15.1 Effect on Successors and Assigns.................................... 45
15.2 Actions by Successors............................................... 46
15.3 Surrender of Company Powers......................................... 46
15.4 Notices............................................................. 46
15.5 Governing Law....................................................... 46
15.6 Treatment of Debentures as Debt..................................... 46
15.7 Compliance Certificates and Opinions................................ 46
15.8 Payments on Business Days........................................... 47
15.9 Conflict With Trust Indenture Act................................... 47
15.10 Counterparts....................................................... 47
15.11 Severability....................................................... 47
15.12 Assignment......................................................... 47
15.13 Acknowledgment of Rights........................................... 47
16. Subordination Of Securities............................................. 48
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TABLE OF CONTENTS
Section Page
16.1 Agreement to Subordinate.............................................. 48
16.2 Default on Senior Debt, Subordinated Debt or Additional
Senior Obligations.................................................. 48
16.3 Liquidation; Dissolution; Bankruptcy.................................. 49
16.4 Subrogation........................................................... 50
16.5 Trustee to Effectuate Subordination................................... 51
16.6 Notice by the Company................................................. 51
16.7 Rights of the Trustee; Holders of Senior Indebtedness................. 52
16.8 Subordination May Not be Impaired..................................... 52
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EXHIBITS
Description Exhibit
Form of Face of Debenture.................................................... A
Certificate of Authentication................................................ B
Subordinated Debenture....................................................... C
TRUST INDENTURE ACT
CROSS-REFERENCE TABLE
Section of Trust Indenture
Acts of 1939, Amended Section of Indenture
310(a)......................................................... 9.1
310(b)......................................................... 9.9, 9.10
310(c)......................................................... Not Applicable
311(a)......................................................... 9.14
311(b)......................................................... 9.14
311(c)......................................................... Not Applicable
312(a)......................................................... 6.1, 6.2(a)
312(b)......................................................... 6.2(c)
312(c)......................................................... 6.2(c)
313(a)......................................................... 6.4(a)
313(b)......................................................... 6.4(b)
313(c)......................................................... 6.4(a), 6.4(b)
313(d)......................................................... 6.4(c)
314(a)......................................................... 6.3
314(b)......................................................... Not Applicable
314(c)......................................................... 15.7
314(d)......................................................... Not Applicable
314(e)......................................................... 15.7(b)
314(f)......................................................... Not Applicable
315(a)......................................................... 7.6, 9.1(b), 9.3
315(b)......................................................... 9.2
315(c)......................................................... 9.1
315(d)......................................................... 9.1(b)
315(e)......................................................... 7.7
316(a)......................................................... 7.6, 9.1(b), 9.3
316(b)......................................................... 7.4
316(c)......................................................... 10.1
317(a)......................................................... 7.2
317(b)......................................................... 5.3
318(a)......................................................... 15.9
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INDENTURE
This Indenture is entered into and effective as of , 1997, by and
between Community Trust Bancorp, Inc. ("Company"), a Kentucky corporation, and
State Street Bank and Trust Company ("Trustee"), Boston, Massachusetts.
Recitals:
A. WHEREAS, for its lawful corporate purposes, the Company has duly authorized
the execution and delivery of this Indenture to provide for the issuance of a
new series of its securities to be known as its ____% Subordinated Debentures
due 2027 (hereinafter referred to as the "Debentures"), the form and substance
of such Debentures and the terms, provisions and conditions thereof to be set
forth as provided in this Indenture;
B. WHEREAS, CTBI Preferred Capital Trust, a Delaware statutory business trust
("CTBI Trust") has offered to the public $_______________ aggregate liquidation
amount of its ____% Cumulative Trust Preferred Securities (the "Preferred
Securities"), representing undivided beneficial interests in the assets of CTBI
Trust and proposes to invest the proceeds from such offering, together with the
proceeds of the issuance and sale by CTBI Trust to the Company of $__________
aggregate liquidation amount of its ____% Trust Common Securities, in
$___________ aggregate principal amount of the Debentures; and
C. WHEREAS, the Company has requested that the Trustee execute and deliver
this Indenture and all requirements necessary to make this Indenture a valid
instrument in accordance with its terms, and to make the Debentures, when
executed by the Company and authenticated and delivered by the Trustee, the
valid obligations of the Company, have been performed, and the execution and
delivery of this Indenture has been duly authorized in all respects;
D. WHEREAS, to provide the terms and conditions upon which the Debentures are
to be authenticated, issued and delivered, the Company has duly authorized the
execution of this Indenture; and
E. WHEREAS, all things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
Agreement:
Now, Therefore, in consideration of the premises and the purchase of the
Securities by the holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the holders of the Securities:
1. Definitions.
1.1 Definitions of Terms. The terms defined in this Section 1.1 (except as
in this Indenture 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 and shall
include the plurals as well as the singular. All other terms used in this
Indenture that are defined in the Trust Indenture Act of 1939, as amended or
that are by reference in such Act defined in the Securities Act of 1933, as
amended (except as herein otherwise expressly provided or unless the context
otherwise requires), shall have the meanings assigned to such terms in said
Trust Indenture Act and in said Securities Act as in force at the date of the
execution of this instrument.
(a) "Accelerated Maturity Date" means if the Company elects to
accelerate the Maturity Date in accordance with Section 2.2(c), the date
selected by the Company which is prior to the Scheduled Maturity Date, but is
after March 31, 2007.
(b) "Additional Sums" shall have the meaning set forth in Section 2.5.
(c) "Additional Senior Obligations" means all indebtedness of the
Company whether incurred on or prior to the date of this Indenture or thereafter
incurred, for claims in respect of derivative products such as interest and
foreign exchange rate contracts, commodity contracts and similar arrangements;
provided, however, that Additional Senior Obligations do not include claims in
respect of Senior Debt or Subordinated Debt or obligations which, by their
terms, are expressly stated to be not superior in right of payment to the
Debentures or to rank pari passu in right of payment with the Debentures. For
purposes of this definition, "claim" shall have the meaning assigned thereto in
Section 101(4) of the United States Bankruptcy Code of 1978, as amended.
(d) "Affiliate" means, with respect to a specified Person, (1) any
Person directly or indirectly owning, controlling or holding with power to vote
10% or more of the outstanding voting securities or other ownership interests of
the specified Person, (2) any Person 10% or more of whose outstanding voting
securities or other ownership interests are directly or indirectly owned,
controlled or held with power to vote by the specified Person, (3) any Person
directly or indirectly controlling, controlled by, or under common control with
the specified Person, (4) a partnership in which the specified Person is a
general partner, (5) any officer or director of the specified Person, and (6) if
the specified Person is an individual, any entity of which the specified Person
is an officer, director or general partner.
(e) "Authenticating Agent" means an authenticating agent with respect
to all or any of the series of Securities appointed with respect to the
Securities by the Trustee pursuant to Section 2.12.
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(f) "Bankruptcy Law" means Title 11, U.S. Code, or any similar federal
or state law for the relief of debtors.
(g) "Board of Directors" means the Board of Directors of the Company
or any duly authorized committee of such Board.
(h) "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.
(i) "Business Day" means, with respect to any series of Securities,
any day other than a day on which Federal or State banking institutions in the
Boston, MA are authorized or obligated by law, executive order or regulation to
close or a day on which the Trustee's Corporate Trust Office is closed for
business.
(j) "Capital Event" means that CTBI Trust has received an opinion of
independent counsel experienced in such matters (which may be counsel to the
Company) that the Company cannot or, within 90 days of such opinion, will not be
permitted by the applicable regulatory authorities, due to a change in law,
regulation, policy or guideline or interpretation or application of law or
regulation, policy or guideline, to account for the Preferred Securities as Tier
I Capital under the capital guidelines or policies of the Federal Reserve.
(k) "CTBI Trust" means CTBI Preferred Capital Trust, a Delaware
business trust created for the sole purpose of issuing preferred securities in
connection with the issuance of Securities under this Indenture and holding the
Subordinated Debentures.
(l) "Certificate" means a certificate signed by the principal
executive officer, the principal financial officer or the principal accounting
officer of the Company. The Certificate need not comply with the provisions of
Section 15.7.
(m) "Common Securities" means undivided beneficial interests in the
assets of CTBI Trust which rank pari passu with Preferred Securities issued by
CTBI Trust; provided, however, that upon the occurrence of an Event of Default,
the rights of holders of Common Securities to payment in respect of
distributions and payments upon liquidation, redemption and otherwise are
subordinated to the rights of holders of Preferred Securities.
(n) "Common Securities Guarantee" means any guarantee that the Company
may enter into with the Trustee or other Persons that operate directly or
indirectly for the benefit of holders of Common Securities of CTBI Trust.
(o) "Company" means Community Trust Bancorp, Inc., a corporation duly
organized and existing under the laws of the Commonwealth of Kentucky, and,
subject to the provisions of Section 12, shall also include its successors and
assigns.
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(p) "Compounded Interest" shall have the meaning set forth in Section
4.1.
(q) "Corporate Trust Office" means the office of the Trustee at which,
at any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at Two International
Place, 4th Floor, Boston, Massachusetts, 02110, Attention: Corporate Trust
Department.
(r) "Custodian" means any receiver, trustee, assignee, liquidator, or
similar official under any Bankruptcy Law.
(s) "Debentures" means the Subordinated Debentures authenticated and
delivered under this Indenture.
(t) "Debt" means with respect to any Person, whether recourse is to
all or a portion of the assets of such Person and whether or not contingent, (i)
every obligation of such Person for money borrowed; (ii) every obligation of
such Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses; (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person; (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business); (v) every capital lease obligation of such Person; and (vi) every
obligation of the type referred to in clauses (i) through (v) of another Person
and all dividends of another Person the payment of which, in either case, such
Person has guaranteed or is responsible or liable, directly or indirectly, as
obligator or otherwise.
(u) "Default" means any event, act or condition that with notice or
lapse of time, or both, would constitute an Event of Default.
(v) "Deferred Interest" shall have the meaning set forth in Section
4.1.
(w) "Depositary" means, with respect to Securities of any series, for
which the Company shall determine that such Securities will be issued as a
Global Security, The Depository Trust Company, New York, New York, another
clearing agency, or any successor registered as a clearing agency under the
Securities and Exchange Act of 1934, as amended (the "Exchange Act"), or other
applicable statute or regulation, which, in each case, shall be designated by
the Company pursuant to this Indenture.
(x) "Dissolution Event" means that as a result of the occurrence and
continuation of a Special Event, CTBI Trust is to be dissolved in accordance
with CTBI Trust Agreement and the Debentures held by the Property Trustee are to
be distributed to the holders of CTBI Trust Securities issued by CTBI Trust pro
rata in accordance with the Trust Agreement.
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(y) "Event of Default" means, with respect to the Debentures, any
event specified in Section 7.1, continued for the period of time, if any,
therein designated.
(z) "Extended Interest Payment Period" shall have the meaning set
forth in Section 4.1.
(aa) "Extended Maturity Date" means if the Company elects to extend
the Maturity Date in accordance with Section 2.2(b), the date selected by the
Company which is after the Scheduled Maturity Date but before March 31, 2036.
(bb) "Federal Reserve" means the Board of Governors of the Federal
Reserve System.
(cc) "Global Security" means, with respect to any series of
Securities, a Security executed by the Company and delivered by the Trustee to
the Depositary or pursuant to the Depositary's instruction, all in accordance
with the Indenture, which shall be registered in the name of the Depositary or
its nominee.
(dd) "Governmental Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America that, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to any such
Governmental Obligation or a specific payment of principal of or interest on any
such Governmental Obligation held by such custodian for the account of the
holder of such depositary receipt; provided, however, that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount received by the
custodian in respect of the Governmental Obligation or the specific payment of
principal of or interest on the Governmental Obligation evidenced by such
depositary receipt.
(ee) "Herein," "hereof," and "hereunder," and other words of similar
import, refer to this Indenture as a whole and not to any particular Section or
other subdivision.
(ff) "Holder" means a Person in whose name a security is registered
in the Securities Register.
(gg) "Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into in accordance with the terms hereof.
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(hh) "Interest Payment Date," when used with respect to any
installment of interest on the Debentures, means the date specified in the
Debenture as the fixed date on which an installment of interest with respect to
the Debentures is due and payable.
(ii) "Investment Company Event" means the receipt by CTBI Trust of an
Opinion of Counsel, rendered by a law firm experienced in such matters, to the
effect that, as a result of the occurrence of a change in law or regulation or a
change in interpretation or application of law or regulation by any legislative
body, court, governmental agency or regulatory authority (a "Change in 1940 Act
Law"), CTBI Trust is or will be considered an "investment company" that is
required to be registered under the 1940 Act, which Change in 1940 Act Law
becomes effective on or after the date of original issuance of the Preferred
Securities under the Trust Agreement.
(jj) "Maturity Date" means the date on which the Debentures mature
and on which the principal shall be due and payable together with all accrued
and unpaid interest thereon including Compounded Interest and Additional
Interest, if any.
(kk) "Non Book-Entry Preferred Securities" shall have the meaning set
forth in Section 2.4.
(ll) "Officers' Certificate" means a certificate signed by the
President or a Vice President and by the Treasurer or an Assistant Treasurer or
the Controller or an Assistant Controller or the Secretary or an Assistant
Secretary of the Company that is delivered to the Trustee in accordance with the
terms hereof. Each such certificate shall include the statements provided for in
Section 15.7, if and to the extent required by the provisions thereof.
(mm) "Opinion of Counsel" means an opinion in writing of legal
counsel, who may not be an employee of the Company but may be counsel to the
Company, that is delivered to the Trustee in accordance with the terms hereof.
Each such opinion shall include the statements provided for in Section 15.7, if
and to the extent required by the provisions thereof.
(nn) "Outstanding," when used with reference to the Debentures,
means, subject to the provisions of Section 10.4, as of any particular time, all
Debentures theretofore authenticated and delivered by the Trustee under this
Indenture, except (1) Debentures theretofore cancelled by the Trustee or any
paying agent, or delivered to the Trustee or any paying agent for cancellation
or that have previously been cancelled; (2) Debentures or portions thereof for
the payment or redemption of which moneys or Governmental Obligations 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 of such
Debentures are to be redeemed prior to the maturity date thereof, notice of such
redemption shall have been given as provided in Section 3, or provision
satisfactory to the Trustee shall have been made for giving such notice; and (3)
Debentures in lieu of or in substitution for which other Debentures shall have
been authenticated and delivered pursuant to the terms of Section 2.9.
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(oo) "Person" means any individual, corporation, partnership, joint-
venture, joint-stock company, unincorporated organization or government or any
agency or political subdivision thereof.
(pp) "Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt and as that
evidenced by such particular Security; and, for the purposes of this definition,
any Security authenticated and delivered under Section 2.9 in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.
(qq) "Preferred Securities" means undivided beneficial interests in
the assets of CTBI Trust which rank pari passu with Common Securities issued by
CTBI Trust; provided, however, that upon the occurrence of an Event of Default,
the rights of holders of Common Securities to payment in respect of
distributions and payments upon liquidation, redemption and otherwise are
subordinated to the rights of holders of Preferred Securities.
(rr) "Preferred Securities Guarantee" means any guarantee that the
Company may enter into with State Street Bank and Trust Company or other Persons
that operate directly or indirectly for the benefit of holders of Preferred
Securities of CTBI Trust.
(ss) "Property Trustee" has the meaning set forth in CTBI Trust
Agreement of CTBI Trust.
(tt) "Responsible Officer" when used with respect to the Trustee
means the Chairman of the Board of Directors, the President, any Vice President,
the Secretary, the Treasurer, any trust officer, any corporate trust officer or
any other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with the particular subject.
(uu) "Scheduled Maturity Date" means March 31, 2027.
(vv) "Securities" means any Debentures.
(ww) "Securityholder," "holder of securities," "registered holder,"
or other similar term, means the Person or Persons in whose name or names a
particular Security shall be registered on the books of the Company kept for
that purpose in accordance with the terms of this Indenture.
(xx) "Senior Debt" means the principal of (and premium, if any) and
interest, if any (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company whether or
not such claim for post-petition interest is allowed in such proceeding), on
Debt, whether incurred on or prior to the date of this Indenture or thereafter
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incurred, unless, in the instrument creating or evidencing the same or pursuant
to which the same is outstanding, it is provided that such obligations are not
superior in right of payment to the Debentures or to other Debt which is pari
passu with, or subordinated to, the Debentures; provided, however, that Senior
Debt shall not be deemed to include (i) any Debt of the Company which when
incurred and without respect to any election under Section 1111(b) of the United
States Bankruptcy Code of 1978, as amended, without recourse to the Company,
(ii) any Debt of the Company to any of its subsidiaries, (iii) Debt to any
employee of the Company, (iv) debt which by its terms is subordinated to trade
accounts payable or accrued liabilities arising in the ordinary course of
business to the extent that payments made to the holders of such Debt by the
holders of the Debentures as a result of the subordination provisions of this
Indenture would be greater than they otherwise would have been as a result of
any obligation of such holders to pay amounts over to the obligees on such trade
accounts payable or accrued liabilities arising in the ordinary course of
business as a result of subordination provisions to which such Debt is subject;
(v) Debt which constitutes Subordinated Debt, and (vi) any other debt securities
issued pursuant to this Indenture.
(yy) "Special Event" means a Tax Event, an Investment Company Event or
a Capital Event.
(zz) "Subordinated Debt" means the principal of (and premium, if any)
and interest, if any (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company whether or
not such claim for post-petition interest is allowed in such proceeding), on
Debt, whether incurred on or prior to the date of this Indenture or thereafter
incurred, which is by its terms expressly provided to be junior and subordinate
to other Debt of the Company (other than the Debentures).
(aaa) "Subsidiary" means, with respect to any Person, (i) any
corporation at least a majority of whose outstanding Voting Stock shall at the
time be 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
whose outstanding partnership or similar interests 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.
(bbb) "Tax Event" means the receipt by CTBI 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 or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which pronouncement or decision is announced on or after the date of issuance of
the Debentures under this Indenture, there is more than an insubstantial risk
that (1) CTBI Trust is, or will be within 90 days after the date of such Opinion
of Counsel, subject to United States federal income tax with respect to interest
received or accrued on the Debentures, (2) interest payable by the Company on
the Debentures is not, or within 90 days after the date of such Opinion of
Counsel, will not be, deductible by the Company,
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in whole or in part, for United States federal income tax purposes, or (3) CTBI
Trust is, or will be within 90 days after the date of such Opinion of Counsel,
subject to more than a de minimis amount of other taxes, duties, assessments or
other governmental charges.
(ccc) "Trust Agreement" means the Amended and Restated Trust
Agreement, dated __________ __, 1997, of CTBI Trust.
(ddd) "Trustee" means State Street Bank and Trust Company and,
subject to the provisions of Section 9, shall also include its successors and
assigns, and, if at any time there is more than one Person acting in such
capacity hereunder, "Trustee" shall mean each such Person. The term "Trustee" as
used with respect to a particular series of the Securities shall mean the
trustee with respect to that series.
(eee) "Trust Indenture Act," means CTBI Trust Indenture Act of 1939,
subject to the provisions of Sections 11.1, 11.2, and 12.1, as in effect at the
date of execution of this instrument.
(fff) "Trust Securities" means Common Securities and Preferred
Securities of CTBI Trust.
(ggg) "Voting Stock," as applied to stock of any Person, 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.
2. ISSUE, DESCRIPTION, TERMS, CONDITIONS REGISTRATION AND EXCHANGE OF THE
DEBENTURES.
2.1 Designation and Principal Amount. There is hereby authorized a series
of Securities designated the "____% Subordinated Debentures due 2027", limited
in aggregate principal amount to $__________ which amount shall be as set forth
in any written order of the Company for the authentication and delivery of
Debentures pursuant to Section 8.2 of this Indenture.
2.2 Maturity.
(a) The Maturity Date will be either:
(1) the Scheduled Maturity Date; or
(2) if the Company elects to extend the Maturity Date beyond the
Scheduled Maturity Date in accordance with Section 2.2(b), the Extended
Maturity Date; or
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(3) if the Company elects to accelerate the Maturity Date to be
prior a date to the Scheduled Maturity Date in accordance with Section
2.2(c), the Accelerated Maturity Date.
(b) The Company may at any time before the day which is 90 days
before the Scheduled Maturity Date, elect to extend the Maturity Date only once
to the Extended Maturity Date provided that the Company has received the prior
approval of the Federal Reserve if then required under applicable capital
guidelines or policies of the Federal Reserve and further provided that the
following conditions in this Section 2.2(b) are satisfied both at the date the
Company gives notice in accordance with Section 2.2(d) of its election to extend
the Maturity Date and at the Scheduled Maturity Date:
(1) the Company is not in bankruptcy, otherwise insolvent or in
liquidation;
(2) the Company is not in default in the payment of any interest
or principal on the Debentures; and
(3) CTBI Trust is not in arrears on payments of Distributions on
the Preferred Securities issued by it and no deferred Distributions are
accumulated.
(c) The Company may at any time before the day which is 90 days
before the Scheduled Maturity Date and after March 31, 2027, elect to shorten
the Maturity Date only once to the Accelerated Maturity Date provided that the
Company has received the prior approval of the Federal Reserve if then required
under applicable capital guidelines or policies of the Federal Reserve.
(d) If the Company elects to extend the Maturity Date in accordance
with Section 2.2(b), the Company shall give notice to registered holders of the
Debentures, the Property Trustee and CTBI Trust of the extension of the Maturity
Date and the Extended Maturity Date at least 90 days and no more than 180 days
before the Scheduled Maturity Date.
(e) If the Company elects to accelerate the Maturity Date in
accordance with Section 2.2(c), the Company shall give notice to registered
holders of the Debentures, the Property Trustee and CTBI Trust of the
acceleration of the Maturity Date and the Accelerated Maturity Date at least 90
days and no more than 180 days before the Accelerated Maturity Date.
2.3 Form and Payment. The Debentures shall be issued in fully registered
certificated form without interest coupons. Principal and interest on the
Debentures issued in certificated form shall be payable, the transfer of such
Debentures shall be registrable and such Debentures shall be exchangeable for
Debentures bearing identical terms and provisions at the office or agency of the
Trustee; provided, however, that payment of interest may be made at the option
of the Company by check mailed to the holder at such address as shall appear in
the Debenture Register or by wire transfer to an account maintained by the
holder as specified in the Debenture Register, provided that the holder provides
proper transfer instructions by the regular record date. Notwithstanding
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the foregoing, so long as the holder of any Debentures is the Property Trustee,
the payment of the principal of and interest (including Compounded Interest and
Additional Interest, if any) on such Debentures held by the Property Trustee
shall be made at such place and to such account as may be designated by the
Property Trustee.
2.4 Global Debenture
(a) In connection with a Dissolution Event,
(1) the Debentures in certificated form may be presented to the
Trustee by the Property Trustee in exchange for a Global Debenture to be
registered in the name of the Depositary, or its nominee, and delivered by the
Trustee to the Depositary for crediting to the accounts of its participants
pursuant to the instructions of the Administrative Trustees. The Company upon
any such presentation shall execute a Global Debenture in such aggregate
principal amount and deliver the same to the Trustee for authentication and
delivery in accordance with this Indenture. Payments on the Debentures issued as
a Global Debenture will be made to the Depositary; and
(2) if any Preferred Securities are held in non book-entry
certificated form, the Debentures in certified form may be presented to the
Trustee by the Property Trustee and any Preferred Security Certificate which
represents Preferred Securities other than Preferred Securities held by the
Clearing Agency or its nominee ("Non Book-Entry Preferred Securities") will be
deemed to represent beneficial interests in Debentures presented to the Trustee
by the Property Trustee having an aggregate principal amount equal to the
aggregate liquidation amount of the Non Book-Entry Preferred Securities until
such Preferred Security Certificates are presented to the Security Registrar for
transfer or reissuance at which time such Preferred Security Certificates will
be canceled and a Debenture, registered in the name of the holder of the
Preferred Security Certificate or the transferee of the holder of such Preferred
Security Certificate, as the case may be, with an aggregate principal amount
equal to the aggregate liquidation amount of the Preferred Security Certificate
canceled, will be executed by the Company and delivered to the Trustee for
authentication and delivery in accordance with this Indenture. On issue of such
Debentures, Debentures with an equivalent aggregate principal amount that were
presented by the Property Trustee to the Trustee will be deemed to have been
canceled.
(b) A Global Debenture may be transferred, in whole but not in part,
only to another nominee of the Depositary, or to a successor Depositary selected
or approved by the Company or to a nominee of such successor Depositary.
(c) If at any time (i) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary or if at any time the Depositary
for the Debentures shall no longer be registered or in good standing under the
Securities Exchange Act of 1934, as amended, or other applicable statute or
regulation, and a successor Depositary for the Debentures is not appointed by
the Company within 90 days after the Company receives such notice or becomes
aware of such condition, as the case may be, or (ii) there shall have occurred
and be continuing an Event of Default with respect to a Global Debenture, then
the Company will execute, and the Trustee, upon written notice from the Company,
will authenticate and deliver the Debentures in definitive registered form
without coupons, and in an aggregate principal amount equal to the principal
amount of the Global Debenture in exchange for such Global Debenture. In
addition, the Company may at any time in its sole discretion determine that the
Debentures shall no longer be represented by a Global Debenture. In such event
the Company will execute, and the Trustee, upon receipt of an Officer's
Certificate evidencing such determination by the Company, will authenticate and
deliver the Debentures in definitive registered form without coupons, and in an
aggregate principal amount equal to the principal amount of the Global Debenture
in exchange for such Global Debenture. Upon the exchange of the Global Debenture
for such Debentures in definitive registered form without coupons, in authorized
denominations, the Global Debenture shall be canceled by the Trustee. Such
Debentures in definitive registered form issued in exchange for the Global
Debenture shall be registered in such names as the Depositary, pursuant to
written instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall deliver such Securities to the
Depositary for delivery to the Persons in whose names such Securities are so
registered.
2.5 Interest.
(a) Each Debenture shall bear interest at the rate of 9.25% per annum
(the "Coupon Rate") from the original date of issuance 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) on any
overdue installment of interest at the Coupon Rate, compounded quarterly,
payable (subject to the provisions of Article IV) quarterly in arrears on March
31, June 30, September 30 and December 31 of each year (each, an "Interest
Payment Date," commencing on March 31, 1997), to the Person in whose name such
Debenture or any Predecessor Debentures is registered, at the close of business
on the regular record date for such interest installment, which shall be the
fifteenth day of the last month of the calendar quarter.
(b) The amount of interest payable for any period will be computed on
the basis of a 360-day year of twelve 30-day months. Except as provided in the
following sentence, the amount of interest payable for any period shorter than a
full quarterly period for which interest is computed, will be computed on the
basis of the actual number of days elapsed in such a 30-day period. 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 will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay) with the same force and effect as if made
on the date such payment was originally payable.
(c) If, at any time while the Property Trustee is the Holder of any
Debentures, CTBI Trust or the Property Trustee is required to pay any taxes,
duties, assessments or other governmental charges of whatever nature (other than
withholding taxes) imposed by the United States, or any other taxing authority,
then, in any case, the Company will pay as additional interest ("Additional
Sums") on the Debentures held by the Property Trustee, such additional amounts
as shall be required so that the net amounts received and retained by CTBI Trust
and the Property Trustee after paying such taxes, duties, assessments or other
governmental charges will be equal to the amounts CTBI Trust and the Property
Trustee would have received had no such taxes, duties, assessments or other
government charges been imposed.
2.6 Execution and Authentications.
(a) The Debentures shall be signed on behalf of the Company by its
President or one of its Vice Presidents, under its corporate seal attested by
its Secretary or one of its Assistant Secretaries. Signatures may be in the form
of a manual or facsimile signature. The Company may use the facsimile signature
of any Person who shall have been a President or Vice President
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thereof, or of any Person who shall have been a Secretary or Assistant Secretary
thereof, notwithstanding the fact that at the time the Securities shall be
authenticated and delivered or disposed of such Person shall have ceased to be
the President or a Vice President, or the Secretary or an Assistant Secretary,
of the Company. The seal of the Company may be in the form of a facsimile of
such seal and may be impressed, affixed, imprinted or otherwise reproduced on
the Securities. The Securities may contain such notations, legends or
endorsements required by law, stock exchange rule or usage. Each Security shall
be dated the date of its authentication by the Trustee.
(b) A Security shall not be valid until authenticated manually by an
authorized signatory of the Trustee, or by an Authenticating Agent. Such
signature shall be conclusive evidence that the Security so authenticated has
been duly authenticated and delivered hereunder and that the holder is entitled
to the benefits of this Indenture.
(c) At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a
written order of the Company for the authentication and delivery of such
Securities, signed by its President or any Vice President and its Treasurer or
any Assistant Treasurer, and the Trustee in accordance with such written order
shall authenticate and deliver such Securities.
(d) In authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 9.1) shall be
fully protected in relying upon, an Opinion of Counsel stating that the form and
terms thereof have been established in conformity with the provisions of this
Indenture.
(e) The Trustee shall not be required to authenticate such Securities
if the issue of such Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner that is not reasonably acceptable to the
Trustee.
2.7 Registration of Transfer and Exchange.
(a) Securities may be exchanged upon presentation thereof at the
office of the Security Registrar and, in the event the Subordinated Debentures
are distributed to the Preferred Security Holders, or office or agency of
the Company designated for such purpose in the Borough of Manhattan, the City
and State of New York, or at the office of the Security Registrar, for other
Securities and for a like aggregate principal amount, upon payment of a sum
sufficient to cover any tax or other governmental charge in relation thereto,
all as provided in this Section. In respect of any Securities so surrendered for
exchange, the Company shall execute, the Trustee shall authenticate and such
office or agency shall deliver in exchange therefor the Security or Securities
that the Securityholder making the exchange shall be entitled to receive,
bearing numbers not contemporaneously outstanding.
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(b) The Company shall keep, or cause to be kept, at its office or
agency designated for such purpose, or at the office of the Security Registrar,
or such other location designated by the Company a register or registers (herein
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall register the Securities and
the transfers of Securities as in this Section provided and which at all
reasonable times shall be open for inspection by the Trustee. The registrar for
the purpose of registering Securities and transfer of Securities as herein
provided shall initially be the Trustee and thereafter as may be appointed by
the Company as authorized by Board Resolution (the "Security Registrar").
(c) Upon surrender for transfer of any Security at the office or
agency of the Company designated for such purpose, the Company shall execute,
the Trustee shall authenticate and such office or agency shall deliver in the
name of the transferee or transferees a new Security or Securities for a like
aggregate principal amount.
(d) All Securities presented or surrendered for exchange or
registration of transfer, as provided in this Section, shall be accompanied (if
so required by the Company or the Security Registrar) by a written instrument or
instruments of transfer, in form satisfactory to the Company or the Security
Registrar, duly executed by the registered holder or by such holder's duly
authorized attorney in writing.
(e) No service charge shall be made for any exchange or registration
of transfer of Securities, or issue of new Securities in case of partial
redemption of any series, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge in relation thereto,
other than exchanges pursuant to Section 2.8, the second paragraph of Section
3.5 and Section 11.4 not involving any transfer.
(f) The Company shall not be required (i) to issue, exchange or
register the transfer of any Securities during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
less than all the Outstanding Securities and ending at the close of business on
the day of such mailing, nor (ii) to register the transfer of or exchange any
Securities or portions thereof called for redemption. The provisions of this
Section 2.7 are, with respect to any Global Security, subject to Section 2.4
hereof.
2.8 Temporary Securities. Pending the preparation of definitive
Securities, the Company may execute, and the Trustee shall authenticate and
deliver, temporary Securities (printed, lithographed, or typewritten). Such
temporary Securities shall be substantially in the form of the definitive
Securities in lieu of which they are issued, but with such omissions, insertions
and variations as may be appropriate for temporary Securities, all as may be
determined by the Company. Every temporary Security shall be executed by the
Company and be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive
Securities. Without unnecessary delay the Company will execute and will furnish
definitive Securities and thereupon any or all temporary Securities may be
surrendered in
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exchange therefor (without charge to the holders), at the office of the Security
Registrar and the Trustee shall authenticate and such office or agency shall
deliver in exchange for such temporary Securities an equal aggregate principal
amount of definitive Securities, unless the Company advises the Trustee to the
effect that definitive Securities need not be executed and furnished until
further notice from the Company. Until so exchanged, the temporary Securities
shall be entitled to the same benefits under this Indenture as definitive
Securities authenticated and delivered hereunder.
2.9 Mutilated, Destroyed, Lost or Stolen Securities.
(a) In case any temporary or definitive Security shall become
mutilated or be destroyed, lost or stolen, the Company (subject to the next
succeeding sentence) shall execute, and upon the Company's request the Trustee
(subject as aforesaid) shall authenticate and deliver, a new Security of the
same series, bearing a number not contemporaneously outstanding, in exchange and
substitution for the mutilated Security, or in lieu of and in substitution for
the Security so destroyed, lost or stolen. In every case the applicant for a
substituted Security shall furnish to the Company and the Trustee such security
or indemnity as may be required by them to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Company and the Trustee evidence to their satisfaction of the destruction,
loss or theft of the applicant's Security and of the ownership thereof. The
Trust may authenticate any such substituted Security and deliver the same upon
the written request or authorization of its President or any Vice President and
its Treasurer or any assistant Treasurer of the Company. Upon the issuance of
any substituted Security, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trust) connected therewith. In case any Security that has matured or is about
to mature shall become mutilated or be destroyed, lost or stolen, the Company
may, instead of issuing a substitute Security, pay or authorize the payment of
the same (without surrender thereof except in the case of a mutilated Security)
if the applicant for such payment shall furnish to the Company and the Trustee
such security or indemnity as they may require to save them harmless, and, in
case of destruction, loss or theft, evidence to the satisfaction of the Company
and the Trustee of the destruction, loss or theft of such Security and of the
ownership thereof.
(b) Every replacement Security issued pursuant to the provisions of
this Section shall constitute an additional contractual obligation of the
Company whether or not the mutilated, destroyed, lost or stolen Security shall
be found at any time, or be enforceable by anyone, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all
other Securities of the same series duly issued hereunder. All Securities shall
be held and owned upon the express condition that the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities, and shall preclude (to the extent lawful) 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.
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2.10 Cancellation. All Securities surrendered for the purpose of payment,
redemption, exchange or registration of transfer shall, if surrendered to the
Company or any paying agent, be delivered to the Trustee for cancellation, or,
if surrendered to the Trustee, shall be cancelled by it, and no Securities shall
be issued in lieu thereof except as expressly required or permitted by any of
the provisions of this Indenture. On request of the Company at the time of such
surrender, the Trustee shall deliver to the Company cancelled Securities held by
the Trustee. In the absence of such request the Trustee may dispose of cancelled
Securities in accordance with its standard procedures and deliver a certificate
of disposition to the Company. If the Company shall otherwise acquire any of the
Securities, however, such acquisition shall not operate as a redemption or
satisfaction of the Indebtedness represented by such Securities unless and until
the same are delivered to the Trustee for cancellation.
2.11 Benefit of Indenture. Nothing in this Indenture or in the
Securities, express or implied, shall give or be construed to give to any
Person, other than the parties hereto and the holders of the Securities (and,
with respect to the provisions of Section 16, the holders of Senior
Indebtedness) any legal or equitable right, remedy or claim under or in respect
of this Indenture, or under any covenant, condition or provision herein
contained; all such covenants, conditions and provisions being for the sole
benefit of the parties hereto and of the holders of the Securities (and, with
respect to the provisions of Section 16, the holders of Senior Indebtedness).
2.12 Authenticating Agent.
(a) So long as any of the Securities remain outstanding there may be
an Authenticating Agent for the Securities which the Trustee shall have the
right to appoint. Said Authenticating Agent shall be authorized to act on behalf
of the Trustee to authenticate the Securities issued upon exchange, transfer or
partial redemption thereof, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. All references in this
Indenture to the authentication of Securities by the Trustee shall be deemed to
include authentication by an Authenticating Agent for such series. Each
Authenticating Agent shall be acceptable to the Company and shall be a
corporation that has a combined capital and surplus, as most recently reported
or determined by it, sufficient under the laws of any jurisdiction under which
it is organized or in which it is doing business to conduct a trust business,
and that is otherwise authorized under such laws to conduct such business and is
subject to supervision or examination by Federal or State authorities. If at any
time any Authenticating Agent shall cease to be eligible in accordance with
these provisions, it shall resign immediately.
(b) 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 (and upon request by the Company shall) terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Company. Upon resignation, termination or
cessation of eligibility of any Authenticating Agent, the Trustee may appoint an
eligible successor Authenticating Agent acceptable to the Company. Any successor
Authenticating Agent,
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upon acceptance of its appointment hereunder, shall become vested with all the
rights, powers and duties of its predecessor hereunder as if originally named as
an Authenticating Agent pursuant hereto.
3. Redemption Of Debentures.
3.1 Redemption. Subject to the Company having received prior approval of
the Federal Reserve, if then required under the applicable capital guidelines or
policies of the Federal Reserve, the Company may redeem the Debentures issued
hereunder on and after the dates and in accordance with the terms established
pursuant to this Section 3.
3.2 Special Event Redemption. Subject to the Company having received the
prior approval of the Federal Reserve, if then required under the applicable
capital guidelines or policies of the Federal Reserve, if a Special Event has
occurred and is continuing, then, notwithstanding Section 3.3(a) but subject to
Section 3.3(b), the Company shall have the right upon not less than 30 days nor
more than 60 days notice to the Holders of the Debentures to redeem the
Debentures, in whole but not in part, for cash within 90 days following the
occurrence of such Special Event (the"90-Day Period") at a redemption price
equal to 100% of the principal amount to be redeemed plus any accrued and unpaid
interest thereon to the date of such redemption (the "Redemption Price"),
provided that if at the time there is available to the Company the opportunity
to eliminate, within the 90-Day Period, the Tax Event by taking some ministerial
action ("Ministerial Action"), such as filing a form or making an election, or
pursuing some other similar reasonable measure which has no adverse effect on
the Company, CTBI Trust or the Holders of CTBI Trust Securities issued by CTBI
Trust, the Company shall pursue such Ministerial Action in lieu of redemption,
and, provided, further, that the Company shall have no right to redeem the
Debentures while CTBI Trust is pursuing any Ministerial Action pursuant to its
obligations under the Trust Agreement. The Redemption Price shall be paid prior
to 12:00 noon, New York time, on the date of such redemption or such earlier
time as the Company determines, provided that the Company shall deposit with the
Trustee an amount sufficient to pay the Redemption Price by 10:00 a.m., New York
time, on the date such Redemption Price is to be paid.
3.3 Optional Redemption by Company.
(a) Subject to the provisions of Section 3.3(b), except as otherwise
may be specified in this Indenture, the Company shall have the right to redeem
the Debentures, in whole or in part, from time to time, on or after March 31,
2027, at a redemption price equal to the Redemption Price. Any redemption
pursuant to this paragraph will be made upon not less than 30 days nor more than
60 days notice to the Holder of the Debentures, at the Redemption Price. If the
Debentures are only partially redeemed pursuant to this Section 3.3, the
Debentures will be redeemed pro rata or by lot or by any other manner the
Trustee shall deem appropriate in its discretion; provided, that if at the time
of redemption the Debentures are registered as a Global Debenture, the
Depositary shall determine, in accordance with its procedures, the principal
amount of such Debentures held by each Holder of Debentures to be redeemed. The
Redemption
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Price shall be paid prior to 12:00 noon, New York time, on the date of such
redemption or at such earlier time as the Company determines provided that the
Company shall deposit with the Trustee an amount sufficient to pay the
Redemption Price by 10:00 a.m., New York time, on the date such Redemption Price
is to be paid.
(b) If a partial redemption of the Debentures would result in the
delisting of the Preferred Securities issued by CTBI Trust from The Nasdaq Stock
Market's National Market or any national securities exchange or other
organization on which the Preferred Securities are then listed, the Company
shall not be permitted to effect such partial redemption and may only redeem the
Debentures in whole.
3.4 Notice of Redemption.
(a) In case the Company shall desire to exercise such right to redeem
all or, as the case may be, a portion of the Debentures in accordance with the
right reserved so to do, the Company shall, or shall cause the Trustee to upon
receipt of 45 days prior written notice from the Company (which notice shall, in
the event of a Partial Redemption, include a representation to the effect that
such Partial Redemption will not result in the delisting of the Preferred
Securities as described in Section 3.3(b) above), give notice of such redemption
to holders of the Debentures to be redeemed by mailing, first class postage
prepaid, a notice of such redemption not less than 30 days and not more than 60
days before the date fixed for redemption to such holders at their last
addresses as they shall appear upon the Security Register unless a shorter
period is specified in the Debentures to be redeemed. Any notice that is mailed
in the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the registered holder receives the notice. In any case,
failure duly to give such notice to the holder of any Security designated for
redemption in whole or in part, or any defect in the notice, shall not affect
the validity of the proceedings for the redemption of any other Debentures. In
the case of any redemption of Debentures prior to the expiration of any
restriction on such redemption provided in the terms of such Debentures or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with any such restriction.
(b) Each such notice of redemption shall specify the date fixed for
redemption and the redemption price at which Debentures of that series are to be
redeemed, and shall state that payment of the redemption price of such
Debentures to be redeemed will be made at the office or agency of the Company or
at the office of the Securities Registrar upon presentation and surrender of
such Debentures, that interest accrued to the date fixed for redemption will be
paid as specified in said notice, that from and after said date interest will
cease to accrue. If less than all the Debentures of a series are to be redeemed,
the notice to the holders of Debentures of that series to be redeemed in whole
or in part shall specify the particular Debentures to be so redeemed. In case
any Security is to be redeemed in part only, the notice that relates to such
Security shall state the portion of the principal amount thereof to be redeemed,
and shall state that on and after the redemption date, upon surrender of such
Security, a new Security or Debentures of such series in principal amount equal
to the unredeemed portion thereof.
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(c) If less than all the Debentures are to be redeemed, the Company
shall give the Trustee at least 45 days' notice in advance of the date fixed for
redemption as to the aggregate principal amount of the Debentures to be
redeemed, and thereupon the Trustee shall select, by lot or in such other manner
as it shall deem appropriate and fair in its discretion and that may provide for
the selection of a portion or portions (equal to twenty-five U.S. dollars ($25)
or any integral multiple thereof) of the principal amount of such Debentures of
a denomination larger than $25, the Debentures to be redeemed and shall
thereafter promptly notify the Company in writing of the numbers of the
Debentures to be redeemed, in whole or in part.
(d) The Company may, if and whenever it shall so elect, by delivery of
instructions signed on its behalf by its President or any Vice President,
instruct the Trustee or any paying agent to call all or any part of the
Debentures of a particular series for redemption and to give notice of
redemption in the manner set forth in this Section, such notice to be in the
name of the Company or its own name as the Trustee or such paying agent may deem
advisable. In any case in which notice of redemption is to be given by the
Trustee or any such paying agent, the Company shall deliver or cause to be
delivered to, or permit to remain with, the Trustee or such paying agent, as the
case may be, such Security Register, transfer books or other records, or
suitable copies or extracts therefrom, sufficient to enable the Trustee or such
paying agent to give any notice by mail that may be required under the
provisions of this Section.
3.5 Payment Upon Redemption.
(a) If the giving of notice of redemption shall have been completed as
above provided, the Debentures or portions of Debentures to be redeemed
specified in such notice shall become due and payable on the date and at the
place stated in such notice at the applicable Redemption Price and interest on
such Debentures or portions of Debentures shall cease to accrue on and after the
date fixed for redemption, unless the Company shall default in the payment of
such Redemption Price with respect to any such Security or portion thereof. On
presentation and surrender of such Debentures on or after the date fixed for
redemption at the place of payment specified in the notice, said Debentures
shall be paid and redeemed at the applicable Redemption Price, together with
interest accrued thereon to the date fixed for redemption (but if the date fixed
for redemption is an interest payment date, the interest installment payable on
such date shall be payable to the registered holder at the close of business on
the applicable record date pursuant to Section 3.3).
(b) Upon presentation of any Debenture that is to be redeemed in part
only, the Company shall execute and the Trustee shall authenticate and the
office or agency where the Security is presented shall deliver to the holder
thereof, at the expense of the Company, a new Security or Debentures of
authorized denomination in principal amount equal to the unredeemed portion of
the Security so presented.
3.6 No Sinking Fund. The Debentures are not entitled to the benefit of any
sinking fund.
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4. Extension of Interest Payment Period.
4.1 Extension of Interest Payment Period. So long as no Event of Default
has occurred and is continuing, the Company shall have the right, at any time
and from time to time during the term of the Debentures, to defer payments of
interest by extending the interest payment period of such Debentures for a
period not exceeding 20 consecutive quarters (each such period an "Extended
Interest Payment Period"), during which Extended Interest Payment Period no
interest shall be due and payable; provided that no Extended Interest Payment
Period may extend beyond the Maturity Date. To the extent permitted by
applicable law, interest, the payment of which has been deferred because of the
extension of the interest payment period pursuant to this Section 4.1, will bear
interest thereon at the Coupon Rate compounded quarterly for each quarter of the
Extended Interest Payment Period ("Compounded Interest"). At the end of the
Extended Interest Payment Period, the Company shall calculate (and deliver such
calculation to the Trustee) and pay all interest accrued and unpaid on the
Debentures, including any Additional Interest and Compounded Interest (together,
"Deferred Interest") that shall be payable to the Holders of the Debentures in
whose names the Debentures are registered in the Security Register on the first
record date after the end of the Extended Interest Payment Period. Before the
termination of any Extended Interest Payment Period, the Company may further
extend such period, provided that such period together with all such further
extensions thereof shall not exceed 20 consecutive quarters, or extend beyond
the Maturity Date of the Debentures. Upon the termination of any Extended
Interest Payment Period and upon the payment of all Deferred Interest then due,
the Company may commence a new Extended Interest Payment Period, subject to the
foregoing requirements. No interest shall be due and payable during an Extended
Interest Payment Period, except at the end thereof, but the Company may prepay
at any time all or any portion of the interest accrued during an Extended
Interest Payment Period.
4.2 Notice of Extension.
(a) If the Property Trustee is the only registered Holder of the
Debentures at the time the Company selects an Extended Interest Payment Period,
the Company shall give written notice to the Administrative Trustees, the
Property Trustee and the Trustee of its selection of such Extended Interest
Payment Period two Business Days before the earlier of (i) the next succeeding
date on which Distributions on CTBI Trust Securities issued by CTBI Trust are
payable, or (ii) the date CTBI Trust is required to give notice of the record
date, or the date such Distributions are payable, to the NASDAQ National Market
or other applicable self-regulatory organization or to holders of the Preferred
Securities issued by CTBI Trust, but in any event at least one Business Day
before such record date.
(b) If the Property Trustee is not the only Holder of the Debentures
at the time the Company selects an Extended Interest Payment Period, the Company
shall give the Holders of the Debentures and the Trustee written notice of its
selection of such Extended Interest Payment Period at least two Business Days
before the earlier of (i) the next succeeding Interest Payment Date, or (ii) the
date the Company is required to give notice of the record or payment date of
such
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interest payment to the NASDAQ National Market or other applicable self-
regulatory organization or to Holders of the Debentures.
(c) The quarter in which any notice is given pursuant to paragraphs
(a) or (b) of this Section 4.2 shall be counted as one of the 20 quarters
permitted in the maximum Extended Interest Payment Period permitted under
Section 4.1.
4.3 Limitation of Transactions. If (i) the Company shall exercise its right
to defer payment of interest as provided in Section 4.1, or (ii) there shall
have occurred any Event of Default, as defined in the Indenture, then (a) the
Company shall not declare or pay any dividend on, make any distributions with
respect to, or redeem, purchase, acquire or make a liquidation payment with
respect to, any of its capital stock or (b) the Company shall not make any
payment of interest, principal or premium, if any, on or repay, repurchase or
redeem any debt securities issued by the Company which rank pari passu with or
junior to the Debentures; (other than (i) purchases or acquisitions of shares of
its common stock in connection with the satisfaction by the Company of its
obligations under any employee benefit plans or the satisfaction by the Company
of its obligations pursuant to any contract or security requiring the Company to
purchase shares of its common stock, (ii) the purchase of fractional interests
in shares of its capital stock pursuant to the conversion or exchange provisions
of such capital stock or security being converted or exchanged, (iii) payments
under the Preferred Securities Guarantee, (iv) dividends or distributions in
common stock of the Company, or (v) any declaration of a dividend in connection
with the implementation of a shareholders' rights plan, or the issuance of stock
under any such plan in the future or the redemption or repurchase or any such
rights pursuant thereto).
5. Particular Covenants Of The Company.
5.1 Payment of Principal and Interest. The Company will duly and punctually
pay or cause to be paid the principal of and interest on the Debentures at the
time and place and in the manner provided herein and established with respect to
such Debentures.
5.2 Maintenance of Agency. So long as any of the Securities remain
Outstanding, the Company agrees to maintain an office or agency in the City of
Pikeville, Kentucky, or at the office of the Property Trustee, where (i)
Securities may be presented for payment, (ii) Securities may be presented as
hereinabove authorized for registration of transfer and exchange, and (iii)
notices and demands to or upon the Company in respect of the Securities and this
Indenture may be given or served, such designation to continue with respect to
such office or agency until the Company shall, by written notice signed by its
President or a Vice President and delivered to the Trustee, designate some other
office or agency for such purposes or any of them. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, notices and
demands may be made or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive all such
presentations, notices and demands.
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5.3 Paying Agents.
(a) The Company appoints the Trustee as the Paying Agent. If the
Company shall appoint one or more paying agents for all of the Securities, other
than the Trustee, the Company will cause each such paying agent to execute and
deliver to the Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provisions of this Section:
(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 on the
Securities (whether such sums have been paid to it by the Company or by any
other obligor of such Securities) in trust for the benefit of the Persons
entitled thereto;
(2) that it will give the Trustee notice of any failure by the
Company (or by any other obligor of such Securities) to make any payment of
the principal of (and premium, if any) or interest on the Securities when
the same shall be due and payable;
(3) that it will, at any time during the continuance of any
failure referred to in the preceding paragraph (a)(ii) above, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such paying agent; and
(4) that it will perform all other duties of paying agent as set
forth in this Indenture.
(b) If the Company shall act as its own paying agent with respect to
the Securities, it will on or before each due date of the principal of (and
premium, if any) or interest on Securities, set aside, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
such principal (and premium, if any) or interest so becoming due on Securities
of that series until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of such
action, or any failure (by it or any other obligor on such Securities) to take
such action. Whenever the Company shall have one or more paying agents for any
of the Securities, it will, prior to each due date of the principal of (and
premium, if any) or interest on any Securities, deposit with the paying agent a
sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such paying agent
is the Trustee) the Company will promptly notify the Trustee of this action or
failure so to act.
(c) Notwithstanding anything in this Section to the contrary, (i) the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Section 13.5, and (ii) the Company may at any time, for the
purpose of obtaining the satisfaction and discharge of this Indenture or for any
other purpose, pay, or direct any paying agent to pay, to the Trustee all sums
held in trust by the Company or such paying agent, such sums to be held by the
Trustee upon the same terms and conditions as those upon which such sums were
held by the Company or such
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paying agent; and, upon such payment by any paying agent to the Trustee, such
paying agent shall be released from all further liability with respect to such
money.
5.4 Appointment to Fill Vacancy in Office of Trustee. The Company, whenever
necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in
the manner provided in Section 9.10, a Trustee, so that there shall at all times
be a Trustee hereunder.
5.5 Compliance with Consolidation Provisions . The Company will not, while
any of the Securities 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 company unless the provisions of Section 12 hereof are complied with.
5.6 Limitation on Dividends; Transactions with Affiliates. If Securities
are issued to CTBI Trust or a trustee of CTBI Trust in connection with the
issuance of Trust Securities by CTBI Trust and (i) there shall have occurred any
event that would constitute an Event of Default, (ii) the Company shall be in
default with respect to its payment of any obligations under the Preferred
Securities Guarantee relating to CTBI Trust or (iii) the Company shall have
given notice of its election to defer payments of interest on such Securities by
extending the interest payment period as provided in the Indenture and such
period, or any extension thereof, shall be continuing, then (a) the Company
shall not declare or pay any dividend on, make any distributions with respect
to, or redeem, purchase or make a liquidation payment with respect to, any of
its capital stock, and (b) the Company shall not make any payment of interest,
principal or premium, if any, on or repay, repurchase or redeem any debt
securities issued by the Company which rank pari passu with or junior in
interest to the Debentures or make any guarantee payments with respect to any
guarantee by the Company of the debt securities of any subsidiary of the Company
if such guarantee ranks pari passu with or junior in interest to the
Subordinated Debentures (other than (a) dividends or distributions in common
stock, (b) any declaration of a dividend in connection with the implementation
of a shareholders' rights plan, or the issuance of stock under any such plan in
the future or the redemption or repurchase of any such rights pursuant thereto,
(c) payments under the Preferred Securities Guarantee, and (d) purchases of
common stock related to rights under any of the Company's benefit plans for its
directors, officers or employees).
5.7 Covenants as to CTBI Trust.
(a) For so long as such Trust Securities of CTBI Trust remain
outstanding, the Company will (i) maintain 100% direct or indirect ownership of
the Common Securities of CTBI Trust; provided, however, that any permitted
successor of the Company under the Indenture may succeed to the Company's
ownership of the Common Securities, (ii) not voluntarily terminate, wind up or
liquidate CTBI Trust, except upon prior approval of the Federal Reserve if then
so required under applicable capital guidelines or policies of the Federal
Reserve, (iii) use its reasonable efforts, consistent with the terms of CTBI
Trust Agreement, to cause CTBI Trust (a) to remain a business trust, except in
connection with a distribution of Securities, the redemption of all of CTBI
Trust Securities of CTBI Trust or certain mergers, consolidations or
amalgamations, each as permitted by the Trust Agreement of CTBI Trust, and (b)
to otherwise continue not to be treated as an association taxable as a
corporation or partnership for United States federal income tax purposes, and
(iv) to use its reasonable efforts, consistent with the terms of the Trust
Agreement, to cause each holder of Trust Securities to be treated as owning an
individual beneficial interest in the Securities.
(b) If the Debentures are to be issued as a Global Debenture in
connection with the distribution of the Debentures to the holders of the
Preferred Securities issued by the CTBI Trust upon a Dissolution Event, the
Company will use its best efforts to list such Debentures on The Nasdaq Stock
Markets' National Market or on such other exchange as the Preferred Securities
are then listed.
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6. Securityholders' Lists And Reports By The Company And The Trustee.
6.1 Company to Furnish Trustee Names and Addresses of Securityholders. The
Company will furnish or cause to be furnished to the Trustee (a) on a quarterly
basis on each regular record date (as defined in Section 2.5(a)) a list, in such
form as the Trustee may reasonably require, of the names and addresses of the
holders of each series of Securities as of such regular record date, provided
that the Company shall not be obligated to furnish or cause to furnish such list
at any time that the list shall not differ in any respect from the most recent
list furnished to the Trustee by the Company (in the event the Company fails to
provide such list on a monthly basis, the Trustee shall be entitled to rely on
the most recent list provided by the Company); 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; provided, however,
that, in either case, no such list need be furnished for any series for which
the Trustee shall be the Security Registrar.
6.2 Preservation of Information Communications with Securityholders.
(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
Securities contained in the most recent list furnished to it as provided in
Section 6.1 and as to the names and addresses of holders of Securities received
by the Trustee in its capacity as Security Registrar (if acting in such
capacity).
(b) The Trustee may destroy any list furnished to it as provided in
Section 6.1 upon receipt of a new list so furnished.
(c) Securityholders may communicate as provided in Section 312(b) of
the Trust Indenture Act with other Securityholders with respect to their rights
under this Indenture or under the Securities.
6.3 Reports by the Company.
(a) The Company covenants and agrees to file with the Trustee, within
15 days after the Company is required to file the same with the Commission,
copies of the annual reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) that the Company may be
required to file with the Commission pursuant to Section 13 or Section 15(d) of
the Exchange Act; or, if the Company is not required to file information,
documents and other reports (or copies of such portions of any of the foregoing
as the Commission may from time to time by rules and regulations prescribe) that
the Company may be required to file with the Commission pursuant to Section 13
or Section 15(d) of the Exchange Act; or, if the Company is not required to file
information, documents or reports pursuant to either of such sections, then to
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file with the Trustee and the Commission, in accordance with the rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports that may be
required pursuant to Section 13 of the Exchange Act, in respect of a security
listed and registered on The Nasdaq Stock Market National Market or a
national securities exchange as may be prescribed from time to time in such
rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed from time to
time by the Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants provided
for in this Indenture as may be required from time to time by such rules and
regulations.
(c) The Company covenants and agrees to transmit by mail, first class
postage prepaid, or reputable over-night delivery service that provides for
evidence of receipt, to the Securityholders, as their names and addresses appear
upon the Security Register, within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents and reports required to be
filed by the Company pursuant to subsections (a) and (b) of this Section as may
be required by rules and regulations prescribed from time to time by the
Commission.
6.4 Reports by the Trustee.
(a) On or before July 15 in each year in which any of the Securities
are Outstanding, the Trustee shall transmit by mail, first class postage
prepaid, to the Securityholders, as their names and addresses appear upon the
Security Register, a brief report dated as of the preceding May 15, if and to
the extent required under Section 313(a) of CTBI Trust Indenture Act.
(b) The Trustee shall comply with Section 313(b) and 313(c) of the
Trust Indenture Act.
(c) A copy of each such report shall, at the time of such transmission
to Securityholders, be filed by the Trustee with the Company, with each stock
exchange upon which any Securities are listed (if so listed) and also with the
Commission. The Company agrees to notify the Trustee when any Securities become
listed on any stock exchange.
7. Remedies Of The Trustee And Securityholders On Event Of Default.
7.1 Events of Default.
(a) Whenever used herein with respect to the Debentures, "Event of
Default" means any one or more of the following events that has occurred and is
continuing:
(1) the Company defaults in the payment of any installment of
interest upon any of the Debentures, as and when the same shall become due and
payable, and continuance of
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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;
(2) the Company defaults in the payment of the principal of (or
premium, if any, on) any of the Debentures as and when the same shall
become due and payable whether at maturity, upon redemption, by declaration
or otherwise; provided, however, that a valid extension of the maturity of
such Securities in accordance with the terms of any indenture supplemental
hereto shall not constitute a default in the payment of principal or
premium, if any;
(3) the Company fails to observe or perform any other of its
covenants or agreements with respect to the Debentures for a period of 90
days after the date on which written notice of such failure, requiring the
same to be remedied and stating that such notice is a "Notice of Default"
hereunder, shall have been given to the Company by the Trustee, by
registered or certified mail, or to the Company and the Trustee by the
holders of at least 25% in principal amount of the Debentures at the time
Outstanding;
(4) the Company pursuant to or within the meaning of any
Bankruptcy Law (i) commences a voluntary case, (ii) consents to the entry
of an order for relief against it in an involuntary case, (iii) consents to
the appointment of a Custodian of it or for all or substantially all of its
property, or (iv) makes a general assignment for the benefit of its
creditors;
(5) a court of competent jurisdiction enters an order under any
Bankruptcy Law that (i) is for relief against the Company in an involuntary
case, (ii) appoints a Custodian of the Company for all or substantially all
of its property, or (iii) orders the liquidation of the Company or the
Guarantor, and the order or decree remains unstayed and in effect for 90
days; or
(6) CTBI Trust shall have voluntarily or involuntarily
dissolved, wound-up its business or otherwise terminated its existence
except in connection with (i) the distribution of Securities to holders of
Trust Securities in liquidation of their interests in CTBI Trust, (ii) the
redemption of all of the outstanding Trust Securities of CTBI Trust or
(iii) certain mergers, consolidations or amalgamation, each as permitted by
the Trust Agreement of CTBI Trust.
(b) In each and every such case, unless the principal of all the
Securities shall have already become due and payable, either the Trustee or the
holders of not less than 25% in aggregate principal amount of the Securities
then Outstanding hereunder, by notice in writing to the Company (and to the
Trustee if given by such Securityholders) may declare the principal of all the
Securities to be due and payable immediately, and upon any such declaration the
same shall become and shall be immediately due and payable, notwithstanding
anything contained in this Indenture or in the Securities.
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(c) At any time after the principal of the Securities shall have been
so declared due and payable, and before any judgment or decree for the payment
of the moneys due shall have been obtained or entered as hereinafter provided,
the holders of a majority in aggregate principal amount of the Securities then
Outstanding hereunder, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if: (i) the Company has
paid or deposited with the Trustee a sum sufficient to pay all matured
installments of interest upon all the Securities of that series and the
principal of (and premium, if any, on) any and all Debentures that shall have
become due otherwise then by acceleration (with interest upon such principal and
premium, if any, and, to the extent that such payment is enforceable under
applicable law, upon overdue installments of interest, at the rate per annum
expressed in the Debentures to the date of such payment or deposit) and the
amount payable to the Trustee under Section 9.6, and (ii) any and all Events of
Default under the Indenture, other than the nonpayment of principal on
Debentures that shall not have become due by their terms, shall have been
remedied or waived as provided in Section 7.6.
(d) No such rescission and annulment shall extend to or shall affect
any subsequent default or impair any right consequent thereon.
(e) In case the Trustee shall have proceeded to enforce any right
with respect to the Debentures 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 and the Trustee shall be restored
respectively to their former positions and rights hereunder, and all rights,
remedies and powers of the Company and the Trustee shall continue as though no
such proceedings had been taken.
7.2 Collection of Indebtedness and Suits for Enforcement by Trustee.
(a) The Company covenants that (1) in case it shall default in the
payment of any installment of interest on any of the Securities, and such
default shall have continued for a period of 90 Business Days, or (2) in case it
shall default in the payment of the principal of (or premium, if any, on) any of
the Securities when the same shall have become due and payable, whether upon
maturity of the Securities or upon redemption or upon declaration or otherwise,
then, upon demand of the Trustee the Guarantor (as defined in the Preferred
Securities Guarantee) will pay to the Trustee, for the benefit of the holders of
the Securities, the whole amount that then shall have been become due and
payable on all such Securities for principal (and premium, if any) or interest,
or both, as the case may be, with interest upon the overdue principal (and
premium, if any) and (to the extent that payment of such interest is enforceable
under applicable law and, if the Securities are held by CTBI Trust or a
trustee of such trust, without duplication of any other amounts paid by CTBI
Trust or trustee in respect thereof) upon overdue installments of interest at
the rate per annum expressed in the Securities; and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, and the amount payable to the Trustee under Section 9.6.
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(b) If the Company shall fail to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action 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 other obligor upon the
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or other obligor upon
the Securities, wherever situated.
(c) In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, readjustment, arrangement, composition or judicial proceedings
affecting the Company or the creditors or property of either, the Trustee shall
have power to intervene in such proceedings and take any action therein that may
be permitted by the court and shall (except as may be otherwise provided by law)
be entitled to file such proofs of claim and other papers and documents as may
be necessary or advisable in order to have the claims of the Trustee and of the
holders of the Securities allowed for the entire amount due and payable by the
Company under the Indenture at the date of institution of such proceedings and
for any additional amount that may become due and payable by the Company after
such date, and to collect and receive any moneys or other property payable or
deliverable on any such claim, and to distribute the same after the deduction of
the amount payable to the Trustee under Section 9.6; and any receiver, assignee
or trustee in bankruptcy or reorganization is hereby authorized by each of the
holders of the Securities to make such payments to the Trustee, and, in the
event that the Trustee shall consent to the making of such payments directly to
such Securityholders, to pay to the Trustee any amount due it under Section 9.6.
(d) All rights of action and of asserting claims under this
Indenture, or under any of the terms established with respect to Securities, may
be enforced by the Trustee without the possession of any of such Securities, 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,
after provision for payment to the Trustee of any amounts due under Section 9.6,
be for the ratable benefit of the holders of the Securities.
(e) 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 at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in the 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.
(f) Nothing contained herein shall be deemed 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
Securities of that series or the rights of any
-27-
holder thereof or to authorize the Trustee to vote in respect of the claim of
any Securityholder in any such proceeding.
7.3 Application of Moneys Collected. Any moneys collected by the Trustee
pursuant to this Section with respect to the Securities shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such moneys on account of principal (or premium, if any) or
interest, upon presentation of the Securities, and notation thereon the payment,
if only partially paid, and upon surrender thereof if fully paid:
(a) FIRST: To the payment of costs and expenses of collection and of
all amounts payable to the Trustee under Section 9.6;
(b) SECOND: To the payment of all Senior Indebtedness of the Company
if and to the extent required by Section 16; and
(c) THIRD: To the payment of the amounts then due and unpaid upon
Securities for principal (and premium, if any) and interest, in respect of which
or for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and payable on
such Securities for principal (and premium, if any) and interest, respectively.
7.4 Limitation on Suits.
(a) No holder of any Security shall have any right by virtue or by
availing of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless (i) such holder previously shall have given to the Trustee
written notice of an Event of Default and of the continuance thereof with
respect to the Securities specifying such Event of Default, as hereinbefore
provided; (ii) the holders of not less than 25% in aggregate principal amount of
the Securities then Outstanding shall have made written request upon the Trustee
to institute such action, suit or proceeding in its own name as trustee
hereunder; (iii) such holder or holders shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby; (iv) 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; and (v) during such 60
day period, the holders of a majority in principal amount of the Securities of
that series do not give the Trustee a direction inconsistent with the request.
(b) Notwithstanding anything contained herein to the contrary, any
other provisions of this Indenture, the right of any holder of any Security to
receive payment of the principal of (and premium, if any) and interest on such
Security, as therein provided, on or after the respective due dates expressed in
such Security (or in the case of redemption, on the redemption date), or to
institute suit for the enforcement of any such payment on or after such
respective dates or
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redemption date, shall not be impaired or affected without the consent of
such holder and by accepting a Security hereunder it is expressly understood,
intended and covenanted by the taker and holder of every Security with every
other such taker and holder and the Trustee, that no one or more holders of
Securities shall have any right in any manner whatsoever by virtue or by
availing of any provision of this Indenture to affect, disturb or prejudice the
rights of the holders of any other of such Securities, 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 Securities. 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.
7.5 Rights and Remedies Cumulative; Delay or Omission Not Waiver.
(a) Except as otherwise provided in Section 2.9, all powers and
remedies given by this Section 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
Securities, 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 such Securities.
(b) No delay or omission of the Trustee or of any holder of any of the
Securities to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power, or
shall be construed to be a waiver of any such default or on acquiescence
therein; and, subject to the provisions of Section 7.4, every power and remedy
given by this Section or by law to the Trustee or the Securityholders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Securityholders.
7.6 Control by Securityholders. The holders of a majority in aggregate
principal amount of the Securities at the time Outstanding, determined in
accordance with Section 10.4, shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee; provided, however,
that such direction shall not be in conflict with any rule of law or with this
Indenture or be unduly prejudicial to the rights of holders of Securities of any
other series at the time Outstanding determined in accordance with Section 10.4
hereof. Subject to the provisions of Section 9.1, the Trustee shall have the
right to decline to follow any such direction if the Trustee in good faith
shall, by a Responsible Officer or Officers of the Trustee, determine that the
proceeding so directed would involve the Trustee in personal liability. The
holders of a majority in aggregate principal amount of the Securities at the
time Outstanding affected thereby, determined in accordance with Section 10.4,
may on behalf of the holders of all of the Securities waive any past default in
the performance of any of the covenants contained herein and its consequences,
except (i) a default in the payment of the principal of, or premium, if any, or
interest on, any of the Securities as and when the same shall become due by the
terms of such securities otherwise than by acceleration (unless such default has
been cured and a sum sufficient
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to pay all matured installments of interest and principal and any premium has
been deposited with the Trustee (in accordance with Section 7.1(c)), (ii) a
default in the covenants contained in Section 5.6, or (iii) in respect of a
covenant or provision hereof which under Section 11 cannot be modified or
amended without the consent of the Holder of each Outstanding Security affected;
provided, however, that if the Debentures are held by CTBI 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 preference of Trust Securities of
CTBI Trust shall have consented to such waiver or modification to such waiver;
provided further, that if the consent of the Holder of each Outstanding Security
is required, such waiver shall not be effective until each holder of CTBI Trust
Securities of CTBI 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 Securities
shall be restored to their former positions and rights hereunder, respectively;
but no such waiver shall extend to any subsequent or other default or impair any
right consequent thereon.
7.6 Undertaking to Pay Costs. All parties to this Indenture, and each
holder of any Securities by such holder's 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, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Securityholder, or
group of Securityholders, holding more than 10% in aggregate principal amount of
the Outstanding Debentures, or to any suit instituted by any Securityholder for
the enforcement of the payment of the principal of (or premium, if any) or
interest on any Debentures, on or after the respective due dates expressed in
such Debenture or established pursuant to this Indenture.
8. Form of Debenture and Original Issue.
8.1 Form of Debenture. The Debenture and the Trustee's Certificate of
Authentication to be endorsed thereon are to be substantially in the forms
contained as Exhibit A to this Indenture, attached hereto and incorporated
herein by reference.
8.2 Original Issue of Debentures. Debentures in the aggregate principal
amount of $___________ may, upon execution of this Indenture, be executed by the
Company and delivered to the Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver said Debentures to or upon the written order
of the Company, signed by its Chairman, its Vice Chairman, its President, or any
Vice President and its Treasurer or an Assistant Treasurer, without any further
action by the Company.
9. Concerning The Trustee.
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9.1 Certain Duties and Responsibilities of Trustee.
(a) The Trustee prior to the occurrence of an Event of Default with
respect to the Securities and after the curing of all Events of Default with
respect to the Debentures that may have occurred, shall undertake to perform
with respect to the Securities of such series 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 (that has not been cured or waived),
the Trustee shall exercise with respect to Debentures 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.
(b) 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:
(1) prior to the occurrence of an Event of Default with respect
to the Debentures and after the curing or waiving of all such Events of Default
with respect to the Debentures that may have occurred:
(A) the duties and obligations of the Trustee shall with
respect to the Debentures be determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable with respect to the Debentures
except for the performance of such duties and obligations as are specifically
set forth in this Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(B) in the absence of bad faith on the part of the Trustee,
the Trustee may with respect to the Debentures 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 that by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this Indenture.
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee, was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the holders of not less than a majority in principal amount of the
Debentures at the time Outstanding relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
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exercising any trust or power conferred upon the Trustee under this Indenture
with respect to the Debentures; and
(4) 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 reasonable ground for believing that
the repayment of such funds or liability is not reasonably assured to it under
the terms of this Indenture or adequate indemnity against such risk is not
reasonably assured to it.
9.2 Notice of Defaults. Within 90 days after actual knowledge by a
Responsible Officer of the Trustee of the occurrence of any default hereunder
with respect to the Securities, the Trustee shall transmit by mail to all
holders of Securities, as their names and addresses appear in the Securities
Register, notice of such default, unless such default shall have been cured or
waived; provided, however, that, except in the case of a default in the payment
of the principal or (or premium, if any) or interest (including any Additional
Interest) on any Security, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of the directors and/or responsible officers of the Trustee
determines in good faith that the withholding of such notice is in the interests
of the holders of such Securities; and provided, further, that in the case of
any default of the character specified in Section 7.1(a)(3), no such notice to
holder of Securities shall be given until at least 30 days after the occurrence
thereof. For the purposes of this Section, the terms "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default with respect to the Securities.
9.3 Certain Rights of Trustee. Except as otherwise provided in Section
9.1:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, security 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 a Board Resolution or an instrument
signed in the name of the Company by the President or any Vice President and by
the Secretary or an Assistant Secretary or the Treasurer or an Assistant
Treasurer thereof (unless other evidence in respect thereof is specifically
prescribed herein);
(c) The Trustee shall not be deemed to have knowledge of a default or
an Event of Default, other than an Event of Default specified in Section 7.1(a)
(1) or (2), unless and until it receives written notification of such Event of
Default from the Company or by holders of at least 25% of the aggregate
principal amount of the Securities at the time Outstanding;
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(d) The Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted hereunder
in good faith and in reliance thereon;
(e) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, 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
that may be incurred therein or thereby; nothing contained herein shall,
however, relieve the Trustee of the obligation, upon the occurrence of an Event
of Default with respect to the Securities (that has not been cured or waived)
to exercise with respect to the Securities 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 liable for any action taken or omitted to
be taken 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;
(g) 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, security, or
other papers or documents unless requested in writing so to do by the holders of
not less than a majority in principal amount of the Outstanding Securities
affected thereby (determined as provided in Section 10.4); 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 costs, expenses or
liabilities as a condition to so proceeding. The reasonable expense of every
such examination shall be paid by the Company or, if paid by the Trustee, shall
be repaid by the Company upon demand; and
(h) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
9.4 Trustee Not Responsible for Recitals or Issuance or Securities.
(a) The recitals contained herein and in the Securities shall be taken
as the statements of the Company and the Trustee assumes no responsibility for
the correctness of the same.
(b) The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities.
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(c) The Trustee shall not be accountable for the use or application by
the Company of any of the Securities or of the proceeds of such Securities, or
for the use or application of any moneys paid over by the Trustee in accordance
with any provision of this Indenture, or for the use or application of any
moneys received by any paying agent other than the Trustee.
9.5 May Hold Securities. The Trustee or any paying agent or Security
Registrar, in its individual or any other capacity, may become the owner or
pledgee of Securities with the same rights it would have if it were not Trustee,
paying agent or Security Registrar.
9.6 Monies Held in Trust. Subject to the provisions of Section 13.5, all
monies received by the Trustee shall, until used or applied as herein provided,
be held in trust for the purposes for which they were received, but need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any monies received by it hereunder
except such as it may agree with the Company to pay thereon.
9.7 Compensation and Reimbursement.
(a) The Company covenants and agrees to pay to the Trustee, and the
Trustee shall be entitled to, such reasonable compensation (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust), as the Company and the Trustee may from time to time agree in
writing, for all services rendered by it in the execution of the trusts hereby
created and in the exercise and performance of any of the powers and duties
hereunder of the Trustee, and, except as otherwise expressly provided herein,
the Company will 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 bad faith. The Company also
covenants to indemnify the Trustee (and its officers, agents, directors and
employees) for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith 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 in the premises.
(b) The obligations of the Company under this Section 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
Securities 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
Securities.
9.8 Reliance on Officers' Certification. Except as otherwise provided in
Section 9.1 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 suffering or omitting to take any action
hereunder, such matter (unless other evidence in respect thereof be
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herein specifically prescribed) may, in the absence of negligence or bad faith
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 bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted to be taken by
it under the provisions of this Indenture upon the faith thereof.
9.9 Disqualification: Conflicting Interests. If the Trustee has or shall
acquire any "conflicting interest" within the meaning of Section 310(b) of the
Trust Indenture Act, the Trustee and the Company shall in all respects comply
with the provisions of Section 310(b) of the Trust Indenture Act.
9.10 Corporate Trustee Required; Eligibility. There shall at all times be a
Trustee with respect to the Debentures issued hereunder which 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 permitted to act as trustee by the
Commission, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least 50 million U.S. dollars
($50,000,000), 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, 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. 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 CTBI Trustee shall cease to
be eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 9.11.
9.11 Resignation and Removal; Appointment of Successor.
(a) The Trustee or any successor hereafter appointed, may at any time
resign with respect to the Securities by giving written notice thereof to the
Company and by transmitting notice of resignation by mail, first class postage
prepaid, to the Securityholders, as their names and addresses appear upon the
Security Register. Upon receiving such notice of resignation, the Company shall
promptly appoint a successor trustee with respect to Securities by written
instrument, in duplicate, executed by order of the 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, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee with respect to
Securities, or any Securityholder who has been a bona fide holder of a Security
or Securities for at least six months may, subject to the provisions of Section
9.9, on behalf of himself and all others similarly situated, petition any such
court for the appointment of a successor trustee. Such court may
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thereupon after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any one of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of
Section 9.9 after written request therefor by the Company or the Guarantor or by
any Securityholder who has been a bona fide holder of a Security or Securities
for at least six months; or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 9.10 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 a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding,
or a receiver of the Trustee or of its property shall be appointed or consented
to, 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 with
respect to all Securities 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 9.9, unless the
Trustee's duty to resign is stayed as provided herein, any Securityholder who
has been a bona fide holder of a Security or Securities for at least six months
may, on behalf of that holder 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 a
successor trustee.
(c) The holders of a majority in aggregate principal amount of the
Securities at the time Outstanding may at any time remove the Trustee by so
notifying the Trustee and the Company and may appoint a successor Trustee with
the consent of the Company.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee with respect to the Securities pursuant to any of the
provisions of this Section shall become effective upon acceptance of appointment
by the successor trustee as provided in Section 9.12.
(e) Any successor trustee appointed pursuant to this section may be
appointed with respect to the Securities, and at any time there shall be only
one Trustee with respect to the Securities.
9.12 Acceptance of Appointment by Successor.
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(a) In case of the appointment hereunder of a successor trustee with
respect to the Securities, every such successor trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor trustee all the rights, powers, and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor trustee all property
and money held by such retiring Trustee hereunder.
(b) Upon request of any such successor trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor trustee all such rights, powers and trusts referred
to in paragraph (a) of this Section, as the case may be.
(c) No successor trustee shall accept its appointment unless at the
time of such acceptance such successor trustee shall be qualified and eligible
under this Section.
(d) Upon acceptance of appointment by a successor trustee as provided
in this Section, the Company shall transmit notice of the succession of such
trustee hereunder by mail, first class postage prepaid, to the Securityholders,
as their names and addresses appear upon the Security Register. If the Company
fails to transmit such notice within ten days after acceptance of appointment by
the successor trustee, the successor trustee shall cause such notice to be
transmitted at the expense of the Company and the Guarantor.
9.13 Merger, Conversion, Consolidation or Succession to Business. Any
corporation into which the Trustee may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to substantially all of the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided that such corporation
shall be qualified under the provisions of Section 9.9 and eligible under the
provisions of Section 9.10, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
9.14 Preferential Collection of Claims Against the Company. The Trustee
shall comply with Section 311(a) of the Trust Indenture Act, excluding any
creditor relationship described in Section 311(b) of the Trust Indenture Act. A
Trustee who has resigned or been removed shall be subject to Section 311(a) of
the Trust Indenture Act to the extent included therein.
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10. Concerning The Securityholders.
10.1 Evidence of Action by Securityholders.
(a) Whenever in this Indenture it is provided that the holders of a
majority or specified percentage in aggregate principal amount of the Securities
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 majority or
specified percentage have joined therein may be evidenced by any instrument or
any number of instruments of similar tenor executed by such holders of
Securities in Person or by agent or proxy appointed in writing.
(b) If the Company shall solicit from the Securityholders any request,
demand, authorization, direction, notice, consent, waiver or other action, the
Company may, at its option, as evidenced by an Officers' Certificate, fix in
advance a record date for the determination of Securityholders entitled to give
such request, demand, authorization, direction, notice, consent, waiver or other
action, 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 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 for the purposes of determining whether
Securityholders of the requisite proportion of Outstanding Securities have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other action, and for that purpose the
Outstanding Securities 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 six
months after the record date.
10.2 Proof of Execution by Securityholders. Subject to the provisions of
Section 10.1, proof of the execution of any instrument by a Securityholder (such
proof will not require notarization) or his agent or proxy and proof of the
holding by any Person of any of the Securities shall be sufficient if made in
the following manner:
(a) The fact and date of the execution by any such Person of any
instrument may be proved in any reasonable manner acceptable to the Trustee.
(b) The ownership of Securities shall be proved by the Security
Register of such Securities or by a certificate of the Security Registrar
thereof.
(c) The Trustee may require such additional proof of any matter
referred to in this Section as it shall deem necessary.
10.3 Who May Be Deemed Owners. Prior to the due presentment for
registration of transfer of any Security, the Company, the Trustee, any paying
agent and any Security Registrar may
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deem and treat the Person in whose name such Security shall be registered upon
the books of the Company as the absolute owner of such Security (whether or not
such Security shall be overdue and notwithstanding any notice of ownership or
writing thereon made by anyone other than the Security Registrar) for the
purpose of receiving payment of or on account of the principal of, premium, if
any, and (subject to Section 2.3) interest on such Security and for all other
purposes; and neither the Company nor the Trustee nor any paying agent nor any
Security Registrar shall be affected by any notice to the contrary.
10.4 Certain Securities Owned by Company Disregarded. In determining
whether the holders of the requisite aggregate principal amount of Securities
have concurred in any direction, consent of waiver under this Indenture, the
Securities that are owned by the Company or any other obligor on the Securities
or by any Person directly or indirectly controlling or controlled by or under
common control with the Company or any other obligor on the Securities shall be
disregarded and deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, consent or waiver, only
Securities that the Trustee actually knows are so owned shall be so disregarded.
The Securities so owned that have been pledged in good faith may be regarded as
Outstanding for the purposes of this Section, if the pledgee shall establish to
the satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not a Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company or any such other obligor. In 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.
10.5 Actions Binding on Future Securityholders. At any time prior to (but
not after) the evidencing to the Trustee, as provided in Section 10.1, of the
taking of any action by the holders of the majority or percentage in aggregate
principal amount of the Securities specified in this Indenture in connection
with such action, any holder of a Security that is shown by the evidence to be
included in the Securities the holders of which have consented to such action
may, by filing written notice with the Trustee, and upon proof of holding as
provided in Section 10.2, revoke such action so far as concerns such Security.
Except as aforesaid any such action taken by the holder of any Security shall be
conclusive and binding upon such holder and upon all future holders and owners
of such Security, and of any Security issued in exchange therefor, on
registration of transfer thereof or in place thereof, irrespective of whether or
not any notation in regard thereto is made upon such Security. Any action taken
by the holders of the majority or percentage in aggregate principal amount of
the Securities specified in this Indenture in connection with such action shall
be conclusively binding upon the Company, the Trustee and the holders of all the
Securities.
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11. Supplemental Indentures.
11.1 Supplemental Indentures Without the Consent of Security holders.
(a) In addition to any supplemental indenture otherwise authorized by
this Indenture, the Company and the Trustee may from time to time and at any
time enter into an indenture or indentures supplemental hereto (which shall
conform to the provisions of CTBI Trust Indenture Act as then in effect),
without the consent of the Securityholders, for one or more of the following
purposes:
(1) to cure any ambiguity, defect, or inconsistency herein, in
the Securities;
(2) to comply with Section 10;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(4) to add to the covenants of the Company for the benefit of the
holders of all of the Securities or to surrender any right or power herein
conferred upon the Company;
(5) to add to, delete from, or revise the conditions,
limitations, and restrictions on the authorized amount, terms, or purposes of
issue, authentication, and delivery of Securities, as herein set forth;
(6) to make any change that does not adversely affect the rights
of any Securityholder in any material respect;
(7) to provide for the issuance of and establish the form and
terms and conditions of the Securities, to establish the form of any
certifications required to be furnished pursuant to the terms of this Indenture
of Securities, or to add to the rights of the holders of Securities; or
(8) qualify or maintain the qualification of the Indenture under
CTBI Trust Indenture Act.
(b) The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, and to make any further
appropriate agreements and stipulations that may be therein contained, but the
Trustee shall not be obligated to enter into any such supplemental indenture
that affects the Trustee's own rights, duties or immunities under this Indenture
or otherwise.
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(c) Any supplemental indenture authorized by the provisions of this
Section may be executed by the Company and the Trustee without the consent of
the holders of any of the Securities at the time Outstanding, notwithstanding
any of the provisions of Section 11.2.
11.2 Supplement Indentures with Consent of Securityholders.
(a) With the consent (evidenced as provided in Section 10.1 of the
holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding, the Company, when authorized by Board
Resolutions, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act as then in effect) 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 not covered by Section 11.1 the rights of the holders of the
Securities under this Indenture; provided, however, that no such supplemental
Indenture shall without the consent of the holders of each Debenture then
Outstanding and affected thereby, (i) extend the fixed maturity of any
Securities, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any premium payable upon the
redemption thereof, without the consent of the holder of each Security so
affected or (ii) reduce the aforesaid percentage of Securities, the holders of
which are required to consent to any such supplemental indenture provided,
further, that so long as any of the Securities issued by CTBI Trust remain
outstanding, no such supplemental indenture shall adversely affect the holders
of the Preferred Securities in any material respect without the consent of the
holders of a majority of the aggregate liquidation preference of the Preferred
Securities, provided further, that if the Debentures are held by CTBI Trust or a
trustee of such trust, such supplemental indenture shall not be effective until
the holders of a majority in liquidation preference of Trust Securities of CTBI
Trust shall have consented to such supplemental indenture; provided further,
that if the consent of the holder of each Outstanding Debt Security is required,
such supplemental indenture shall not be effective until each holder of the
Trust Securities of CTBI Trust shall have consented to such supplemental
indenture.
(b) It shall not be necessary for the consent of the Securityholders
affected thereby under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
11.3 Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture pursuant to the provisions of this Section or of Section
10.1, 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 Securities 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.
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11.4 Securities Affected by Supplemental Indentures. Securities affected
by a supplemental indenture, authenticated and delivered after the execution of
such supplemental indenture pursuant to the provisions of this Section or of
Section 11.1, may bear a notation in form approved by the Company, provided such
form meets the requirements of any exchange upon which the Securities may be
listed as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of that series 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 by the Company, authenticated by the Trustee and delivered in
exchange for the Securities then Outstanding.
11.5 Execution of Supplemental Indentures.
(a) Upon the request of the Company, accompanied by their Board
Resolutions authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Securityholders
required to consent thereto 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. The Trustee,
subject to the provisions of Section 9.1 may receive an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant to this
Section is authorized or permitted by, and conforms to, the terms of this
Section and that it is proper for the Trustee under the provisions of this
Section to join in the execution thereof.
(b) 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, setting forth in
general terms the substance of such supplemental indenture, to the
Securityholders as their names and addresses appear upon the Security 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.
12. Successor Corporation.
12.1 Company May Consolidate, Etc. Nothing contained in this Indenture or
in any of the Securities shall prevent any consolidation or merger of the
Company with or into any other corporation or corporations (whether or not
affiliated with the Company, as the case may be), or successive consolidations
or mergers in which the Company, as the case may be, or its successor or
successors shall be a party or parties, or shall prevent any sale, conveyance,
transfer or other disposition of the property of the Company, as the case may
be, or its successor or successors as an entirety, or substantially as an
entirety, to any other corporation (whether or not affiliated with the Company,
as the case may be, or its successor or successors) authorized to acquire and
operate the same; provided, however, the Company hereby covenants and agree
that, (i) upon any such consolidation, merger, sale, conveyance, transfer or
other disposition, the due and punctual
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payment, in the case of the Company, of the principal of (premium, if any) and
interest on all of the Debentures, according to their terms 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 as the case may be, shall be
expressly assumed, by supplemental indentures (which shall conform to the
provisions of the Trust Indenture Act, as then in effect) satisfactory in form
to the Trustee executed and delivered to the Trustee by the entity formed by
such consolidation, or into which the Company, as the case may be, shall have
been merged, or by the entity which shall have acquired such property; (ii) in
case the Company consolidates with or merges into another Person or conveys or
transfers its properties and assets substantially then as an entirety to any
Person, the successor Person is organized under the laws of the United States of
any state or the District of Columbia, and (iii) immediately after giving effect
thereto, an Event of Default, and no event which, after notice or lapse of time
or both, would become an Event of Default, shall have occurred and be
continuing.
12.2 Successor Corporation Substituted.
(a) In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition and upon the assumption by the successor
corporation, by supplemental indenture, executed and delivered to the Trustee
and satisfactory in form to the Trustee, of, in the case of the Company, the due
and punctual payment of the principal of, premium, if any, and interest on all
of the Debentures Outstanding and the due and punctual performance of all of the
covenants and conditions of this Indenture to be performed by the Company, as
the case may be such successor corporation shall succeed and be substituted for
the Company with the same effect as if it had been named as the Company herein,
and thereupon the predecessor corporation shall be relieved of all obligations
and covenants under this Indenture and the Securities.
(b) In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition such changes in phraseology and form (but not in
substance) may be made in the Securities thereafter to be issued as may be
appropriate.
(c) Nothing contained in this Indenture or in any of the Securities
shall prevent the Company from merging into itself or acquiring by purchase or
otherwise all or any part of the property of any other Person (whether or not
affiliated with the Company).
12.3 Evidence of Consolidation, Etc. to Trustee. The Trustee, subject to
the provisions of Section 9.1 may receive an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, conveyance, transfer or
other disposition, and any such assumption, comply with the provisions of this
Section.
13. Satisfaction And Discharge.
13.1 Satisfaction and Discharge of Indenture. If at any time: (a) the
Company shall have delivered to the Trustee for cancellation all Securities
theretofore authenticated (other than any
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Securities that shall have been destroyed, lost or stolen and that shall have
been replaced or paid as provided in Section 2.9) and Securities for whose
payment money or Governmental Obligations have theretofore been deposited in
trust or segregated and held in trust by the Company (and thereupon repaid to
the Company or discharged from such trust, as provided in Section 13.5; or all
such Securities not theretofore delivered to the Trustee for cancellation shall
have become due and payable, or are by their terms to become due and payable
within one year or are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption,
and the Company shall deposit or cause to be deposited with the Trustee as trust
funds the entire amount in moneys or Governmental Obligations sufficient or a
combination thereof, sufficient in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay at maturity or upon redemption all Securities
not theretofore 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 date fixed for redemption, as the case may be, and if the Company shall also
pay or cause to be paid all other sums payable hereunder with respect to the
Company; then this Indenture shall thereupon cease to be of further effect
except for the provisions of Sections 2.3, 2.7, 2.9, 5.1, 5.2, 5.3 and 9.10,
that shall survive until the date of maturity or redemption date, as the case
may be, and Sections 9.6 and 13.5, that shall survive to such date and
thereafter, and the Trustee, on demand of the Company and at the cost and
expense of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture.
13.2 Discharge of Obligations. If at any time all such Securities not
heretofore delivered to the Trustee for cancellation or that have not become due
and payable as described in Section 13.1 shall have been paid by the Company by
depositing irrevocably with the Trustee as trust funds moneys or an amount of
Governmental Obligations sufficient in the opinion of a nationally recognized
certified public accounting firm to pay at maturity or upon redemption all such
Securities not theretofore 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 date fixed for redemption, as the case may be, and if the Company
shall also pay or cause to be paid all other sums payable hereunder by the
Company, then after the date such moneys or Governmental Obligations, as the
case may be, are deposited with the Trustee the obligations of the Company under
this Indenture shall cease to be of further effect except for the provisions of
Sections 2.3, 2.7, 2.9, 5.1, 5.3, 9.6, 9.10 and 13.5 hereof that shall survive
until such Securities shall mature and be paid. Thereafter, Sections 9.6 and
13.5 shall survive.
13.3 Deposited Moneys to be Held in Trust. All monies or Governmental
Obligations deposited with the Trustee pursuant to Sections 13.1 or 13.2 shall
be held in trust and shall be available for payment as due, either directly or
through any paying agent (including the Company acting as its own paying agent),
to the holders of the Securities for the payment or redemption of which such
moneys or Governmental Obligations have been deposited with the Trustee.
13.4 Payment of Monies Held by Paying Agents. In connection with the
satisfaction and discharge of this Indenture all moneys or Governmental
Obligations then held by any paying agent under the provisions of this Indenture
shall, upon demand of the Company, be paid to the Trustee
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and thereupon such paying agent shall be released from all further liability
with respect to such moneys or Governmental Obligations.
13.5 Repayment to Company. Any monies or Governmental Obligations deposited
with any paying agent or the Trustee, or then held by the Company in trust for
payment of principal of or premium or interest on the Securities that are not
applied but remain unclaimed by the holders of such Securities for at least two
years after the date upon which the principal of (and premium, if any) or
interest on such Securities shall have respectively become due and payable,
shall be repaid to the Company, upon written request by the Company, on March 31
of each year or (if then held by the Company) shall be discharged from such
trust; and thereupon the paying agent and the Trustee shall be released from all
further liability with respect to such moneys or Governmental Obligations, and
the holder of any of the Securities entitled to receive such payment shall
thereafter, as an unsecured general creditor, look only to the Company or the
Guarantor for the payment thereof.
14. Immunity Of Incorporators, Stockholders, Officers And Directors.
14.1 No Recourse. No recourse under or upon any obligation, covenant or
agreement of this Indenture, or of any Security, or for any claim based thereon
or otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer or director, past, present or future as such, of the
Company or of any predecessor or successor corporation, either directly or
through the Company or the Guarantor or any such predecessor or successor
corporation, 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 this Indenture and the obligations issued hereunder are solely
corporate obligations, and that no such personal liability whatever shall attach
to, or is or shall be incurred by, the incorporators, stockholders, officers or
directors as such, of the Company or of any predecessor or successor
corporation, or any of them, because of the creation of the Indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied therefrom;
and that any and all such personal liability of every name and nature, either at
common law or in equity or by constitution or statute, of, and any and all such
rights and claims against, every such incorporator, stockholder, officer or
director as such, because of the creation of the indebtedness hereby authorized,
or under or by reason of the obligations, covenants or agreements contained in
this Indenture or in any of the Securities or implied therefrom, are hereby
expressly waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issuance of such Securities.
15. Miscellaneous Provisions.
15.1 Effect on Successors and Assigns. All the covenants, stipulations,
promises and agreements in this Indenture contained by or on behalf of the
Company shall bind their respective successors and assigns, whether so expressed
or not.
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15.2 Actions by Successors. 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 corresponding board, committee or officer of any corporation
that shall at the time be the lawful sole successor of the Company.
15.3 Surrender of Company Powers. The Company by instrument in writing
executed by authority of 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, as the case may be, and as to any successor corporation.
15.4 Notices. Except as otherwise expressly provided herein any notice or
demand that by any provision of this Indenture is required or permitted to be
given or served by the Trustee or by the holders of Securities to or on the
Company may be given or served by being deposited first class postage prepaid in
a post-office letterbox addressed (until another address is filed in writing by
the Company with the Trustee), as follows: c/o Community Trust Bancorp, Inc.,
208 North Mayo Trail, Pikeville, Kentucky 415101, Attention Chief Financial
Officer. Any notice, election, request or demand by the Company or any
Securityholder to or upon the Trustee shall be deemed to have been sufficiently
given or made, for all purposes, if received in writing at the Corporate Trust
Office of the Trustee.
15.5 Governing Law. This Indenture and each Security shall be deemed to be
a contract made under the internal laws of the Commonwealth of Kentucky and for
all purposes shall be construed in accordance with the laws of said State.
15.6 Treatment of Debentures as Debt. It is intended that the Debentures
will be treated as indebtedness and not as equity for federal income tax
purposes. The provisions of this Indenture shall be interpreted to further this
intention.
15.7 Compliance Certificates and Opinions.
(a) 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 all conditions
precedent 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, except that in
the case of any such application or demand as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating
to such particular application or demand, no additional certificate or opinion
need be furnished.
(b) Each certificate and opinion of the Company provided for in this
Indenture and delivered to the Trustee with respect to compliance with a
condition or covenant in this Indenture shall include (1) a statement that the
Person making such certificate or opinion has read such
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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.
15.8 Payments on Business Days. In any case where the date of maturity of
interest or principal of any Security or the date of redemption of any Security
shall not be a Business Day, then payment of interest or principal (and premium,
if any) may be made on the next succeeding Business Day with the same force and
effect as if made on the nominal date of maturity or redemption, and no interest
shall accrue for the period after such nominal date.
15.9 Conflict With Trust Indenture Act. If and to the extent that any
provision of this Indenture limits, qualifies or conflicts with the duties
imposed by Sections 310 to 317, inclusive, of Trust Indenture Act, such imposed
duties shall control.
15.10 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.
15.11 Severability. In case any one or more of the provisions contained in
this Indenture or in the Securities of any series 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 Securities, but this Indenture and such Securities shall be
construed as if such invalid or illegal or unenforceable provision had never
been contained herein or therein.
15.12 Assignment. The Company will have the right at all times to assign
any of its respective 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, the Indenture is binding upon and inures to the
benefit of the parties thereto and their respective successors and assigns. This
Indenture may not otherwise be assigned by the parties thereto.
15.13 Acknowledgment of Rights. The Company acknowledges that, with respect
to any Debentures held by CTBI Trust or a trustee of such trust, if the Property
Trustee fails to enforce its rights under this Indenture as the holder of the
series of Debentures held as the assets of CTBI Trust any holder of Preferred
Securities may institute legal proceedings directly against the Company to
enforce such Property Trustee's rights under this Indenture without first
instituting any legal proceedings against such Property Trustee or any other
person or entity. 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 principal on the Securities on the date such interest
or principal is otherwise payable (or in the case of redemption, on the
redemption
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date), the Company acknowledges that a holder of Preferred Securities may
directly institute a proceeding for enforcement of payment to such holder of the
principal of or interest on the Securities having a principal amount equal to
the aggregate liquidation amount of the Preferred Securities of such holder on
or after the respective due date specified in the Applicable Series of
Securities.
16. Subordination Of Securities.
16.1 Agreement to Subordinate.
(a) The Company covenants and agrees, and each Holder of Debentures
issued hereunder by such Holder's acceptance thereof likewise covenants and
agrees, that all Debentures shall be issued subject to the provisions of this
Section 16; and each Holder of a Debt Security, whether upon original issue or
upon transfer or assignment thereof, accepts and agrees to be bound by such
provisions.
(b) The payment by the Company of the principal of, premium, if any,
and interest on all Debentures issued hereunder shall, to the extent and in the
manner hereinafter set forth, be subordinated and junior in right of payment of
the prior payment in full of all Senior Debt, Subordinated Debt and Additional
Senior Obligations, whether outstanding at the date of this Indenture or
thereafter incurred.
(c) No provision of this Section 16 shall prevent the occurrence of
any default or Event of Default hereunder.
16.2 Default on Senior Debt, Subordinated Debt or Additional Senior
Obligations.
(a) 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 Debt, Subordinated Debt or Additional Senior Obligations of the
Company, as the case may be, or in the event that the maturity of any Senior
Debt, Subordinated Debt or Additional Senior Obligations of the Company
(collectively, "Senior Indebtedness"), as the case may be, has been accelerated
because of a default, then, in either case, no payment shall be made by the
Company with respect to the principal (including redemption and sinking fund
payments) of, or premium, if any, or interest on the Debentures.
(b) 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 16.2, such payment shall 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
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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.
16.3 Liquidation; Dissolution; Bankruptcy.
(a) 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;
and 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 holders of
the Debentures or the Trustee would be entitled to receive from the Company,
except for the provisions of this Section 16, 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 holders of the Debentures or by
the Trustee under the Indenture if received by them or it, directly to the
holders of Senior Indebtedness of the Company (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 Holders of Debentures or to the Trustee.
(b) 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 of the Company 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, and their respective interests may appear, as calculated
by the Company, for application to the payment of all Senior Indebtedness of the
Company, as the case may be, remaining unpaid to the extent necessary to pay
such Senior Indebtedness in full in money in accordance with its terms, after
giving effect to any concurrent payment or distribution to or for the benefit of
the holders of such Senior Indebtedness.
(c) For purposes of this Section 16, 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 readjust-
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ment, the payment of which is subordinated at least to the extent provided in
this Section 16 with respect to the Debentures to the payment of all Senior
Indebtedness of the Company, as the case may be, 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
Section 10 of the Indenture shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section 16.3 if such
other corporation shall, as a part of such consolidation, merger, conveyance or
transfer, comply with the conditions stated in Section 10 of the Indenture.
Nothing in Section 16.2 or in this Section 16.3 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 9.6 of the Indenture.
16.4 Subrogation.
(a) Subject to the payment in full of all Senior Indebtedness of the
Company, the rights of the Holders of the Debentures 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, as the case may
be, applicable to such Senior Indebtedness until the principal of (and premium,
if any) and interest on the Debentures shall be paid in full; and, 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
Holders of the Debentures or the Trustee would be entitled except for the
provisions of this Section 16, and no payment over pursuant to the provisions of
this Section 16 to or for the benefit of the holders of such Senior Indebtedness
by Holders of the Debentures 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 by the Company to or on
account of such Senior Indebtedness. It is understood that the provisions of
this Section 16 are and are intended solely for the purposes of defining the
relative rights of the Holders of the Debentures, on the one hand, and the
holders of such Senior Indebtedness on the other hand.
(b) Nothing contained in this Section 16 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 of the
Company, and the Holders of the Debentures, the obligations 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, as the case may be, other than the holders of
Senior Indebtedness of the Company, as the case may be, nor shall anything
herein or therein prevent the Trustee or the Holder of any Debt Security from
exercising all remedies otherwise permitted by applicable law upon default under
the Indenture, subject to the rights, if any, under this Section 16 of the
holders of such Senior Indebtedness in respect of
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cash, property or securities of the Company, as the case may be, received upon
the exercise of any such remedy.
(c) Upon any payment or distribution of assets of the Company referred
to in this Section 16, the Trustee, subject to the provisions of Section 9.1 of
the Indenture, and the Holders of the Debentures 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 Holders of the
Debentures, for the purposes of ascertaining the Persons entitled to participate
in such distribution, the holders of Senior Indebtedness and other indebtedness
of the Company, as the case may be, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Section 16.
16.5 Trustee to Effectuate Subordination. Each Holder of Debentures by such
Holder's acceptance thereof authorizes and directs the Trustee on such Holder's
behalf to take such action as may be necessary or appropriate to effectuate the
subordination provided in this Section 16 and appoints the Trustee such Holder's
attorney-in-fact for any and all such purposes.
16.6 Notice by the Company.
(c) The Company shall give prompt written notice to a Responsible
Officer of the Trustee of any fact known to the Company that would prohibit the
making of any payment of monies to or by the Trustee in respect of the
Debentures pursuant to the provisions of this Section 16. Notwithstanding the
provisions of this Section 16 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 Section 16, unless
and until a Responsible Officer 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 Section 9.1 of the 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 16.6 at least two 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 two
Business Days prior to such date.
(b) The Trustee, subject to the provisions of Section 9.1 of the
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 of the Company, as the case may be (or a trustee
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on behalf of such holder), to establish that such notice has been given by a
holder of such Senior Indebtedness or a trustee 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 Section 16, 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 Section 16, 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.
16.7 Rights of the Trustee; Holders of Senior Indebtedness.
(a) The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Section 16 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. The Trustee's right to compensation and reimbursement
of expenses as set forth in Section 9.6 shall not be subject to the
subordination provisions of this Section 16.
(b) With respect to the holders of Senior Indebtedness of the Company,
the Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Section 16, and not 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 Section 9.1 of the Indenture, the Trustee shall not
be liable to any holder of such Senior Indebtedness if it shall pay over or
deliver to Holders if Debentures, the Company or any other Person money or
assets to which any holder of such Senior Indebtedness shall be entitled by
virtue of this Section 16 or otherwise.
16.8 Subordination May Not be Impaired.
(a) No right of any present or future holder of any Senior
Indebtedness of the Company 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, as the case may be, or by any act or failure to act, in
good faith, by any such holder, or by any noncompliance by the Company, as the
case may be, 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.
(b) Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness of the Company may, at any time
and from time to time, without the consent of or notice to the Trustee or the
Holders of the Debentures, without incurring responsibility to the Holders of
the Debentures and without impairing or releasing the
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subordination provided in this Section 16 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 an
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, as the case may be, and any other Person.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
COMMUNITY TRUST BANCORP, INC.
By:
-------------------------------------
Richard M. Levy, Executive Vice
President and Chief Financial Officer
ATTEST:
- ----------------------------
Jean R. Hale, Secretary
STATE STREET BANK AND TRUST COMPANY
as Trustee
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
STATE OF
----------------- )
) SS:
COUNTY OF )
---------------- )
The foregoing instrument was acknowledged before me this ____ day of ________,
1997 by Richard M. Levy, as Executive Vice President and Chief Financial Officer
of Community Trust Bancorp, Inc., a Kentucky corporation on behalf of the
corporation.
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My commission expires: ________________________.
_______________________________
Notary Public
COMMONWEALTH OF MASSACHUSETTS )
) SS:
COUNTY OF SUFFOLK )
The foregoing instrument was acknowledged before me this ____ day of ________,
1997 by _______________, as _________________________ of State Street Bank and
Trust Company, a Massachusetts trust company on behalf of the trust company.
My commission expires: ________________________.
_______________________________
Notary Public
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EXHIBIT A
(FORM OF FACE OF DEBENTURE)
No. _____________________________ $ ______________________
CUSIP No. 204149-10-8
COMMUNITY TRUST BANCORP, INC.
___% SUBORDINATED DEBENTURE
DUE MARCH 31, 2027
Community Trust Bancorp, Inc., a Kentucky corporation (the "Company", which
term includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to, ________________, or
registered assigns, the principal sum of _______________ Dollars ($_______) on
March 31, 2027 (the "Stated Maturity"), and to pay interest on said principal
sum from __________, 1997, to which interest has been paid or duly provided for,
quarterly (subject to deferral as set forth herein) in arrears on each of March
31, June 30, September 30, and December 31 of each year at the rate of ___% per
annum until the principal hereof shall have become due and payable, and on any
overdue principal and premium, if any, and (without duplication and to the
extent that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the same rate per annum compounded quarterly.
The amount of interest payable on any Interest Payment Date shall be computed on
the basis of a 360-day year of twelve 30-day months. Except as provided in the
following sentence, the amount of interest payable for any period shorter than a
full quarterly period for which interest is computed, will be computed on the
basis of the actual number of days elapsed in a 360-day year of twelve 30-day
months. In the event that any date on which interest is payable on this
Debenture is not a business day, then payment of interest payable on such date
will be made on the next succeeding day that is a business day (and without any
interest or other payment in respect of any such delay) in each case with the
same force and effect as if made on the date such 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, as defined in said Indenture) is registered at the close of business
on the regular record date for such interest installment, which shall be the
close of business on the business day next preceding such Interest Payment Date
unless otherwise provided in the indenture. Any such interest installment not
punctually paid or duly provided for shall forthwith cease to be payable to the
registered Holders 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 to be fixed by the Trustee for
the payment of such defaulted interest, notice whereof shall be given to the
registered Holders of this series of Debentures not less than 10 days prior to
such special record date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Debentures may
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be listed, and upon such notice as may be required by such exchange, all as more
fully provided in the Indenture. The principal of (and premium, if any) and the
interest on this Debenture shall be payable at the office or agency of the
Trustee 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 debt; provided, however, that payment of interest may be made at the
option of the Company by check mailed to the registered Holder at such address
as shall appear in the Security Register. Notwithstanding the foregoing, so long
as the Holder of this Debenture is the Property Trustee, the payment of the
principal of (and premium, if any) and interest on this Debenture will be made
at such place and to such account as may be designated by the Property Trustee.
The Stated Maturity may be shortened at any time by the Company to any date
not earlier than March 31, 2027, subject to the Company having received prior
approval of the Federal Reserve if then required under applicable capital
guidelines or policies of the Federal Reserve. Such date may also be extended
at any time at the election of the Company for one or more periods, but in no
event to a date later than March 31, 2036, subject to certain limitations
described in the Indenture.
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 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 continued provisions shall for all purposes have the same effect as though
fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be executed.
Dated ___________, 1997
COMMUNITY TRUST BANCORP, INC.
By:
-------------------------
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Name: Richard M. Levy
Title: Executive Vice President and
Chief Financial Officer
Attest:
By: _______________________
Name: Jean R. Hale
Title: Secretary
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EXHIBIT B
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures described in the within-mentioned Indenture.
Dated:
--------------------------
- --------------------------------
as Trustee
---------------------------------
or Authentication Agent
By: By
----------------------------- ------------------------------
Authorized Signatory
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EXHIBIT C
(FORM OF REVERSE OF DEBENTURE)
_____% SUBORDINATED DEBENTURE
(CONTINUED)
This Debenture is one of the subordinated debentures of the Company (herein
sometimes referred to as the "Debentures"), specified in the Indenture, all
issued or to be issued under and pursuant to an Indenture dated as of
_______________, 1997 (the "Indenture") duly executed and delivered between the
Company and State Street Bank and Trust Company, as Trustee (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.
Because of the occurrence and continuation of a Tax Event, Investment
Company Event or Capital Event, in certain circumstances, this Debenture may
become due and payable at the principal amount together with any interest
accrued thereon, to the date of such redemption (the "Redemption Price"). The
Redemption Price shall be paid prior to 12:00 noon, Eastern Standard Time, on
the date of such redemption or at such earlier time as the Company determines.
The Company shall have the right to redeem this Debenture at the option of the
Company, without premium or penalty, in whole or in part at any time on or after
March 31, 2007 (an "Optional Redemption"), or at any time in certain
circumstances upon the occurrence of a Tax Event or Investment Company Event, at
the Redemption Price. Any redemption pursuant to this paragraph will be made
upon not less than 30 days nor more than 60 days notice, at the Redemption
Price. If the Debentures are only partially redeemed by the Company pursuant to
an Optional Redemption, the Debentures will be redeemed pro rata or by lot or by
any other method utilized by the Trustee.
In the event of redemption of this Debenture in part only, a new Debenture
or Debentures for the unredeemed portion hereof will be issued in the name of
the Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
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The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of Debentures not less than a majority in
aggregate principal amount of the Debentures at the time Outstanding, as defined
in the Indenture, to execute supplemental indentures for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of the 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 (i) extend the fixed maturity of the Debentures
except as provided in the Indenture, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon, or reduce any
premium payable upon the redemption thereof, without the consent of the Holder
of each Debenture so affected, or (ii) reduce the aforesaid percentages of
Debentures, the Holders of which are required to consent to any such
supplemental indenture, without the consent of the Holders of each Debenture
then outstanding and affected thereby. The Indenture also contains provisions
permitting the Holders of a majority in aggregate principal amount of the
Debentures at the time outstanding affected thereby, on behalf of all of the
Holders of the Debentures, to waive any past default in the performance of any
of the covenants contained in the Indenture, or established pursuant to the
Indenture, and its consequences, except a default in the payment of the
principal of or premium, if any, or interest on any of the Debentures of such
series. Any such consent or waiver by the registered Holder of this Debenture
(unless removed as provided in the Indenture) shall be conclusive and binding
upon such Holder and upon all future Holders and owners of this Debenture and of
any Debenture issued in exchange herefor or in place hereof (whether by
registration of transfer or otherwise), irrespective of whether or not any
notation of such consent or waiver is made upon this Debenture.
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 on this Debenture at the time and place and at the rate and in the
money herein prescribed.
The Company shall have the right at any time during the term of the
Debentures and from time to time to extend the interest payment period of such
Debentures for up to 20 consecutive quarters (an "Extended Interest Payment
Period"), at the end of which period the Company shall pay all interest then
accrued and unpaid (together with interest thereon at the rate specified for the
Debentures to the extent that payment of such interest is enforceable under
applicable law). Before the termination of any such Extended Interest Payment
Period, the Company may further extend such Extended Interest Payment Period,
provided that such Extended Interest Payment Period together with all such
further extensions thereof shall not exceed 20 consecutive quarters. At the
termination of any such Extended Interest Payment Period and upon the payment of
all accrued and unpaid interest and any additional amounts then due, the Company
may commence a new Extended Interest Payment Period.
As provided in the Indenture and subject to certain limitations therein set
forth, this Debenture is transferable by the registered Holder hereof on the
Security Register of the Company, upon surrender of this Debenture for
registration of transfer at the office or agency of the Trustee in Boston,
Massachusetts accompanied by a written instrument or instruments of transfer in
form
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satisfactory to the Company or the Trustee duly executed by the registered
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Debentures of authorized denominations and for the same aggregate
principal amount and series will be issued to the designated transferee or
transferees. No service charge will be made for any such transfer, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Debenture,
the Company, the Trustee, any paying agent and the Security Registrar may deem
and treat the registered holder hereof as the absolute owner hereof (whether or
not this Debenture shall be overdue and notwithstanding any notice of ownership
or writing hereon made by anyone other than the Security Registrar) for the
purpose of receiving payment of or on account of the principal hereof and
premium, if any, and interest due hereon and for all other purposes, and neither
the Company nor the Trustee nor any paying agent nor any Security Registrar
shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
All terms used in this Debenture that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
The Debentures are issuable only in registered form without coupons in
denominations of $25 and any integral multiple thereof. This Global Debenture is
exchangeable for Debentures in definitive form only under certain limited
circumstances set forth in the Indenture. Debentures of this series so issued
are issuable only in registered form without coupons in denominations of $25 and
any integral multiple thereof.
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