Recitals
Exhibit
4.3
Replacement
Capital Covenant, dated as of October 23,
2006
(this “Replacement
Capital Covenant”),
by
Southern Union Company, a Delaware corporation (together with its successors
and
assigns, the “Corporation”),
in
favor of and for the benefit of each Covered Debtholder (as defined
below).
Recitals
A. On
the
date hereof, the Corporation is issuing $600,000,000 aggregate principal amount
of its 2006 Series A Junior Subordinated Notes Due 2066 (the “Notes”).
B. This
Replacement Capital Covenant is the “Replacement Capital Covenant” referred to
in the Prospectus Supplement, dated October 18, 2006, relating to the
Notes.
C. The
Corporation, in entering into and disclosing the content of this Replacement
Capital Covenant in the manner provided below, is doing so with the intent
that
the covenants provided for in this Replacement Capital Covenant be enforceable
by each Covered Debtholder and the Corporation be estopped from disregarding
the
covenants in this Replacement Capital Covenant, in each case to the fullest
extent permitted by applicable law.
NOW,
THEREFORE,
the
Corporation hereby covenants and agrees as follows in favor of and for the
benefit of each Covered Debtholder.
SECTION
1. Definitions. Capitalized
terms used in this Replacement Capital Covenant (including the Recitals) have
the meanings set forth in Schedule I hereto.
SECTION
2. Limitations
on Redemption and Repurchase of Notes. The
Corporation hereby promises and covenants to and for the benefit of each Covered
Debtholder that the Corporation and its Subsidiaries shall not redeem or
repurchase all or any part of the Notes on or before October 31, 2036 except
to
the extent that the total redemption or repurchase price therefor is equal
to or
less than the sum of (i) the Applicable Percentage of the aggregate net
cash proceeds received by the Corporation or its Subsidiaries from
non-affiliates during the 180 days prior to the applicable redemption or
repurchase date from the issuance and sale of Common Stock of the Corporation
plus
(ii) 100% of the aggregate net cash proceeds received by the Corporation or
its Subsidiaries from non-affiliates during the 180 days prior to the
applicable redemption or repurchase date from the issuance and sale of
Qualifying Capital Securities of the Corporation (other than Common Stock).
For
the avoidance of doubt, persons covered by Corporation’s dividend reinvestment
plan, direct stock purchase plan and employee benefit plans shall be deemed
non-affiliates for purposes of this Section 2.
SECTION
3. Covered
Debt. (a) The
Corporation represents and warrants that the Initial Covered Debt is Eligible
Debt.
(b) (i) During
the period commencing on the earlier of (x) the date two years and 30 days
prior to the final maturity date for the then effective Covered Debt and
(y) the date on which the Corporation gives notice of redemption of the
then effective Covered Debt, if such redemption is in whole or in part and,
after giving effect to such redemption, the outstanding principal of such
Covered Debt would be less than $100,000,000, or (ii) if earlier than the
date specified in clauses (x) and (y) of this Section 3(b)(i), on
the date on which the Corporation or a Subsidiary of the Corporation repurchases
the then effective Covered Debt in whole or in part and, after giving effect
to
such repurchase, the outstanding principal amount of such Covered Debt would
be
less than $100,000,000, the Corporation shall identify the series of Eligible
Debt that will become the Covered Debt on the related Redesignation Date in
accordance with the following procedures:
(A) the
Corporation shall identify each series of its then outstanding long-term
indebtedness for money borrowed that is Eligible Debt;
(B) if
only
one series of the Corporation’s then outstanding long-term indebtedness for
money borrowed is Eligible Debt, such series shall become the Covered Debt
commencing on the related Redesignation Date;
(C) if
the
Corporation has more than one outstanding series of long-term indebtedness
for
money borrowed that is Eligible Debt, then the Corporation shall identify the
series that has the latest occurring final maturity date as of the date the
Corporation is applying the procedures in this Section 3(b) and such series
shall become the Covered Debt on the upcoming Redesignation Date;
(D) the
series of outstanding long-term indebtedness for money borrowed that is
determined to be Covered Debt pursuant to clause (B) or (C) above shall be
the
Covered Debt for purposes of this Replacement Capital Covenant for the period
commencing on the related Redesignation Date and continuing to but not including
the Redesignation Date as of which a new series of outstanding long-term
indebtedness is next determined to be the Covered Debt pursuant to the
procedures set forth in this Section 3(b); and
(E) in
connection with such identification of a new series of Covered Debt, the
Corporation shall give the notice provided for in Section 3(d) within the time
frame provided for in such section.
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(c) Notwithstanding
any other provisions of this Replacement Capital Covenant, if a series of
Eligible Senior Debt has become the Covered Debt in accordance with Section
3(b), on the date on which the Corporation or a Subsidiary of the Corporation
issues a new series of Eligible Subordinated Debt, then immediately upon such
issuance such series shall become the Covered Debt and the applicable series
of
Eligible Senior Debt shall cease to be Covered Debt.
(d) Notice.
In
order to give effect to the intent of the Corporation described in Recital
C
and
Section 5(c),
the
Corporation covenants that (a) simultaneously with the execution of this
Replacement Capital Covenant, or as soon as practicable after the date hereof,
it shall give notice to the Holders of the Initial Covered Debt, in the manner
provided in the indenture relating to the Initial Covered Debt, of this
Replacement Capital Covenant and the rights granted to such Holders hereunder;
(b) so long as the Corporation is a reporting company under the Securities
Exchange Act, the Corporation will include in each annual report filed with
the
Commission on Form 10-K under the Securities Exchange Act a description of
the
covenant set forth in Section 2 and identify the series of long-term
indebtedness for borrowed money that is Covered Debt as of the date such Form
10-K is filed with the Commission; (c) if a series of the Corporation’s
long-term indebtedness for money borrowed (1) becomes Covered Debt or (2) ceases
to be Covered Debt, give notice of such occurrence within 30 days to the holders
of such long-term indebtedness for money borrowed in the manner provided for
in
the indenture, fiscal agency agreement or other instrument under which such
long-term indebtedness for money borrowed was issued and report such change
in
the Corporation’s next quarterly report on Form 10-Q or annual report on Form
10-K, as applicable; (d) if, and only if, the Corporation ceases to be a
reporting company under the Securities Exchange Act, post on its website the
information otherwise required to be included in Securities Exchange Act filings
pursuant to clauses (b) and (c) above; and (e) promptly upon request by any
Holder of Covered Debt, provide such Holder with an executed copy of this
Replacement Capital Covenant.
SECTION
4. Termination
and Amendment.
(a) The
obligations of the Corporation pursuant to this Replacement Capital Covenant
shall remain in full force and effect until the earliest date (the “Termination
Date”)
to
occur of (i) [_______], 2036, (ii) the date, if any, on which the Holders
of at least 51% by principal amount of the then effective series of Covered
Debt
consent or agree in writing to the termination of the obligations of the
Corporation hereunder and (iii) the date on which the Corporation ceases to
have
any series of outstanding Eligible Senior Debt or Eligible Subordinated Debt
(in
each case without giving effect to the rating requirement in clause (ii) of
the
definition of each such term). From and after the Termination Date, the
obligations of the Corporation pursuant to this Replacement Capital Covenant
shall be of no further force and effect with respect to the Holders, or
otherwise.
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(b) This
Replacement Capital Covenant may be amended or supplemented from time to time
by
a written instrument signed by the Corporation with the consent of the Holders
of at least 51% by principal amount of the then effective series of Covered
Debt, provided that this Replacement Capital Covenant may be amended or
supplemented from time to time by a written instrument signed by the Corporation
(and without the consent of the Holders) if such amendment or supplement is
not
adverse to the Holders of the then-effective series of Covered Debt and an
officer of the Corporation has delivered to the Holders of the then-effective
series of Covered Debt in the manner provided for in the indenture, fiscal
agency agreement or other instrument with respect to such Covered Debt a written
certificate stating that, in his or her determination, such amendment or
supplement is not adverse to the Holders of the then-effective series of Covered
Debt.
(c) For
purposes of Sections 4(a) and 4(b), the Holders whose consent or agreement
is
required to terminate, amend or supplement this Replacement Capital Covenant
or
the obligations of the Corporation hereunder shall be the Holders of the then
effective Covered Debt as of a record date established by the Corporation that
is not more than 30 days prior to the date on which the Corporation proposes
that such termination, amendment or supplement becomes effective.
SECTION
5. Miscellaneous.
(a) This
Replacement Capital Covenant shall be governed by and construed in accordance
with the laws of the State of New York without regard to choice of law
principles.
(b) This
Replacement Capital Covenant shall be binding upon the Corporation and its
successors and assigns and shall inure to the benefit of the Covered Debtholders
as they exist from time-to-time (it being understood and agreed by the
Corporation that any Person who is a Covered Debtholder at the time such Person
acquires or immediately after such Person sells Covered Debt shall retain its
status as a Covered Debtholder for so long as the series of long-term
indebtedness for borrowed money owned by such Person is Covered Debt and, if
such Person initiates a claim or proceeding to enforce its rights under this
Replacement Capital Covenant after the Corporation has violated its covenants
in
Section 2 and before the series of long-term indebtedness for money borrowed
held by such Person is no longer Covered Debt, such Person’s rights under this
Replacement Capital Covenant shall not terminate by reason of such series of
long-term indebtedness for money borrowed no longer being Covered
Debt).
(c) The
Corporation acknowledges that reliance by each Covered Debtholder upon the
covenants in this Replacement Capital Covenant is reasonable and foreseeable
by
the Corporation and that, were the Corporation to disregard its covenants in
this Replacement Capital Covenant, each Covered Debtholder would have sustained
an injury as a result of its reliance on such covenants.
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(d) All
demands, notices, requests and other communications to the Corporation under
this Replacement Capital Covenant shall be deemed to have been duly given and
made if in writing and (i) if served by personal delivery upon the Corporation,
on the day so delivered (or, if such day is not a Business Day, the next
succeeding Business Day), (ii) if delivered by registered post or certified
mail, return receipt requested, or sent to the Corporation by a national or
international courier service, on the date of receipt by the Corporation (or,
if
such date of receipt is not a Business Day, the next succeeding Business Day),
or (iii) if sent by telecopier, on the day telecopied, or if not a Business
Day,
the next succeeding Business Day, provided that the telecopy is promptly
confirmed by telephone confirmation thereof, and in each case to the Corporation
at the address set forth below, or at such other address as the Corporation
may
thereafter post on its website as the address for notices under this Replacement
Capital Covenant:
Southern
Union Company
Attention:
Facsimile
No:
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IN
WITNESS WHEREOF,
the
Corporation has caused this Replacement Capital Covenant to be executed by
its
duly authorized officer as of the day and year first above written.
Southern
Union
Company
By:
/s/Xxxxxx X. Xxxxxxxx, III
Name:
Xxxxxx
X.
Xxxxxxxx, III
Title:
Vice President, Assistant General
Counsel
and Secretary
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NY12533:207803.5
Definitions
“Alternative
Payment Mechanism”
means,
with respect to any securities or combination of securities referred to in
the
definition of Qualifying Capital Securities, that such securities or related
transaction agreements include a provision to the effect that, if the
Corporation has exhausted its rights to defer Distributions at its option
pursuant to an Optional Deferral Provision or if any Mandatory Trigger Provision
has become applicable, the Corporation may or shall, as applicable, unless
a
Market Disruption Event has occurred and is continuing, (i) issue and sell
shares of its common stock and/or Qualifying Non-Cumulative Preferred Stock,
as
applicable, during the 180 days prior to each applicable Distribution Date,
in
amount such that the net proceeds of such sale shall equal or exceed such
Distributions and (ii) apply the net proceeds of such sale to pay
Distributions to be paid in full.
“Applicable
Percentage”
means,
in respect of any issuance and sale of Common Stock during the 180 days prior
to
the date of redemption or repurchase of any Notes, 400%.
“Board
of Directors”
means
the Board of Directors of the Corporation or a duly constituted committee
thereof.
“Business
Day”
means
each day other than (i) a Saturday or Sunday or (ii) a day on which banking
institutions in the City of New York are authorized or obligated by law,
regulation or executive order to close.
“Commission”
means
the United States Securities and Exchange Commission.
“Common
Equity Units”
means
a
security or combination of securities that (i) gives the holders (a) a
beneficial interest in a fixed income security of the Corporation (including
a
debt security, a trust preferred security of a subsidiary trust or preferred
stock) that has a maturity no greater than six years and (b) a beneficial
interest in a stock purchase contract; (ii) includes a remarketing feature
pursuant to which the fixed income security is required to be remarketed to
new
investors within four years from the date of issuance of the security; and
(iii)
provides for the proceeds raised in the remarketing to be used to purchase
a
determinable number of shares of Common Stock (which may be determinable within
a range) pursuant to the stock purchase contract.
“Common
Stock”
means
common stock of the Corporation (including treasury shares of common stock
and
shares of common stock sold pursuant to the Corporation’s dividend reinvestment
plan, direct stock purchase plan and employee benefit plans).
“Corporation”
has
the
meaning specified in the introduction to this instrument.
I-1
“Covered
Debtholder”
means
each Person (whether a Holder or a beneficial owner holding through a
participant in a clearing agency) that buys, holds or sells long-term
indebtedness for money borrowed of the Corporation during the period that such
long-term indebtedness for money borrowed is Covered Debt, provided that a
Person who has sold all its right, title and interest in Covered Debt shall
cease to be a Covered Debtholder at the time of such sale if, at such time,
the
Corporation has not breached or repudiated, or threatened to breach or
repudiate, its obligations hereunder.
“Covered
Debt”
means
(i) at the date of this Replacement Capital Covenant and continuing to but
not
including the first Redesignation Date, the Initial Covered Debt and (ii)
thereafter, commencing with each Redesignation Date and continuing to but not
including the next succeeding Redesignation Date, the Eligible Debt identified
pursuant to Section 3(b) as the Covered Debt for such period.
“Distribution
Date”
means,
as to any securities or combination of securities, the dates on which periodic
Distributions on such securities are scheduled to be made.
“Distribution
Period”
means,
as to any securities or combination of securities, each period from and
including a Distribution Date for such securities to but not including the
next
succeeding Distribution Date for such securities.
“Distributions”
means,
as to a security or combination of securities, dividends, interest payments
or
other income distributions to the holders thereof that are not Subsidiaries
of
the Corporation.
“Eligible
Debt”
means,
at any time, Eligible Subordinated Debt or, if no Eligible Subordinated Debt
is
then outstanding, Eligible Senior Debt.
“Eligible
Senior Debt”
means,
at any time in respect of any issuer, each series of outstanding long-term
indebtedness for money borrowed of such issuer that (i) upon a bankruptcy,
liquidation, dissolution or winding up of the issuer, ranks most senior among
the issuer’s then outstanding classes of indebtedness for money borrowed;
(ii) is then assigned a rating by at least one NRSRO (provided that this
clause shall apply on a Redesignation Date only if on such date the issuer
has
outstanding senior long-term indebtedness for money borrowed that satisfies
the
requirements of clauses (i), (iii) and (iv) that is then assigned a
rating by at least one NRSRO); (iii) has an outstanding principal amount of
not less than $100,000,000; and (iv) was issued through or with the
assistance of a commercial or investment banking firm or firms acting as
underwriters, initial purchasers or placement or distribution agents. For
purposes of this definition as applied to securities with a CUSIP number, each
issuance of long-term indebtedness for money borrowed that has (or, if such
indebtedness is held by a trust or other intermediate entity established
directly or indirectly by the issuer, the securities of such intermediate entity
have) a separate CUSIP number shall be deemed to be a series of the issuer’s
long-term indebtedness for money borrowed that is separate from each other
series of such indebtedness.
“Eligible
Subordinated Debt”
means,
at any time in respect of any issuer, each series of the issuer’s then
outstanding long-term indebtedness for money borrowed that (i) upon a
bankruptcy, liquidation, dissolution or winding up of the issuer, ranks
subordinate to the issuer’s then outstanding series of indebtedness for money
borrowed that ranks most senior; (ii) is then assigned a rating by at least
one
NRSRO (provided that this clause (ii) shall apply on a Redesignation Date only
if on such date the issuer has outstanding subordinated long-term indebtedness
for money borrowed that satisfies the requirements in clauses (i), (iii) and
(iv) that is then assigned a rating by at least one NRSRO); (iii) has an
outstanding principal amount of not less than $100,000,000; and (iv) was issued
through or with the assistance of a commercial or investment banking firm or
firms acting as underwriters, initial purchasers or placement or distribution
agents. For purposes of this definition as applied to securities with a CUSIP
number, each issuance of long-term indebtedness for money borrowed that has
(or,
if such indebtedness is held by a trust or other intermediate entity established
directly or indirectly by the issuer, the securities of such intermediate entity
have) a separate CUSIP number shall be deemed to be a series of the issuer’s
long-term indebtedness for money borrowed that is separate from each other
series of such indebtedness.
I-2
“Explicit
Replacement Covenant”
means,
as to any security or combination of securities, that the Corporation has made
a
covenant substantially similar to the Replacement Capital Covenant to the effect
that the Corporation will redeem or repurchase such securities only if and
to
the extent that the total redemption or repurchase price is equal to or less
than the net proceeds received from the issuance and sale of Qualifying Capital
Securities, substantially as defined herein but as applied to such securities
instead of to the Notes, raised within 180 days prior to the applicable
redemption or repurchase date, and that the Board of Directors has determined
that such covenant is binding on the Corporation for the benefit of one or
more
series of the Corporation’s long-term indebtedness for money borrowed to the
same extent as this Replacement Capital Covenant is binding on the Corporation
for the benefit of the Holders of the Initial Covered Debt.
“Holder”
means,
as to the Covered Debt then in effect, each holder of such Covered Debt as
reflected on the securities register maintained by or on behalf of the
Corporation with respect to such Covered Debt.
“Initial
Covered Debt”
means
the 8.25% Senior Notes due 2029, issued by the Corporation on October 27, 1999
(CUSIP No. 000000XX0).
“Intent-Based
Replacement Disclosure”
means,
as to any security or combination of securities issued, directly or indirectly,
by the Corporation, that the Corporation has publicly stated its intention,
either in the prospectus or other offering document under which such securities
were initially offered for sale or in filings with the Commission made by the
Corporation under the Securities Exchange Act prior to or contemporaneously
with
the issuance of such securities, that the Corporation will redeem or repurchase
such securities only with the proceeds of Qualifying Capital Securities,
substantially as defined herein but as applied to such securities instead of
to
the Notes, raised within 180 days prior to the applicable redemption or
repurchase date.
I-3
“Mandatory
Trigger Provision”
means,
as to any security or combination of securities, provisions in the terms thereof
or in the related transaction agreements that (A) require, or at its option
in
the case of perpetual Non-Cumulative Preferred Stock permit, the issuer of
such
security or combination of securities to make payment of Distributions on such
securities only in connection with the issuance and sale of shares of its Common
Stock, or Qualifying Non-Cumulative Preferred Stock, within two years of a
failure to satisfy one or more financial tests set forth in the terms of such
securities or related transaction agreements, in amount such that the net
proceeds of such sale at least equal the amount of unpaid Distributions on
such
securities (including without limitation all deferred and accumulated amounts)
and in either case requires the application of the net proceeds of such sale
to
pay such unpaid Distributions, (B) in the case of securities other than
perpetual Non-Cumulative Preferred Stock, prohibit the issuer from repurchasing
any shares of its Common Stock prior to the date six months after the issuer
applies the net proceeds of the sales described in clause (A) to pay such unpaid
Distributions in full, (C) upon any liquidation, dissolution, winding up,
reorganization or in connection with any insolvency, receivership or proceeding
under any bankruptcy law with respect to the issuer, limit the claim of the
holders of such securities (other than perpetual Non-Cumulative Preferred Stock)
for Distributions that accumulate during a period in which the Corporation
fails
to satisfy one or more financial tests set forth in the terms of such securities
or related transaction agreements to (x) 25% of the principal amount of such
securities then outstanding in the case of securities not permitting the
issuance and sale pursuant to the provisions described in clause (A) above
of
securities other than Common Stock or (y) two years of accumulated and unpaid
Distributions (including compounded amounts thereon) in all other cases and
(D)
limit the issuer's use of Qualifying Non-Cumulative Preferred Stock for purposes
of making payments of Distributions on such securities to a liquidation amount
not in excess of 25% of the initial aggregate liquidation amount (in the case
of
perpetual Non-Cumulative Preferred Stock) or the initial aggregate principal
amount (in the case of securities other than perpetual Non-Cumulative Preferred
Stock). No remedy other than Permitted Remedies will arise by the terms of
such
securities or related transaction agreements in favor of the holders of such
securities as a result of the issuer's failure to pay Distributions because
of
the Mandatory Trigger Provision or as a result of the issuer's exercise of
its
right under an Optional Deferral Provision until Distributions have been
deferred for one or more Distribution Periods that total together at least
ten
years.
“Market
Disruption Event”
means
the occurrence or existence of any of the following events or sets of
circumstances:
I-4
(i) trading
in securities generally, or in the Corporation’s securities specifically, on the
New York Stock Exchange or any other national securities exchange or
over-the-counter market on which the Corporation’s common stock or preferred
stock is then listed or traded shall have been suspended or its settlement
generally shall have been materially disrupted;
(ii) the
Corporation would be required to obtain the consent or approval of a regulatory
body (including, without limitation, any securities exchange) or governmental
authority to issue shares of the Corporation’s common stock or Qualifying
Non-Cumulative Preferred Stock and the Corporation fails to obtain that consent
or approval notwithstanding the Corporation’s commercially reasonable efforts to
obtain that consent or; or
(iii) an
event
occurs and is continuing as a result of which the offering document for the
offer and sale of the Corporation’s common stock or perpetual non-cumulative
preferred stock would, in the Corporation’s reasonable judgment, contain an
untrue statement of a material fact or omit to state a material fact required
to
be stated in that offering document or necessary to make the statements in
that
offering document not misleading and either (A) the disclosure of that event
at
the time the event occurs, in the Corporation’s reasonable judgment, would have
a material adverse effect on the Corporation’s business or (B) the disclosure
relates to a previously undisclosed proposed or pending material business
transaction, the disclosure of which would impede the Corporation’s ability to
consummate that transaction, provided that one or more events described in
this
subsection (iii) shall not constitute a Market Disruption Event with respect
to
more than one interest payment date.
“Non-Cumulative
Preferred Stock”
means
preferred or preference stock having Distributions which may be skipped by
the
issuer thereof for any number of distribution periods without any remedy arising
under the terms of such securities or related transaction agreements in favor
of
the holders of such securities as a result of such issuer’s failure to pay
Distributions, other than Permitted Remedies (except for those described under
clause (iii) of the definition thereof).
“Notes”
has
the
meaning specified in Recital A.
“NRSRO”
means
a
nationally recognized statistical rating organization within the meaning of
Rule
15c3-1(c)(2)(vi)(F) under the Securities Exchange Act.
“Optional
Deferral Provision”
means,
as to any security or combination of securities, a provision in the terms
thereof or of the related transaction agreements, substantially similar to
Section 4.1 of the Second Supplemental Indenture, to the effect that the issuer
thereof may, in its sole discretion, defer in whole or in part payment of
Distributions on such securities for one or more consecutive Distribution
Periods of up to ten years without any remedy other than Permitted Remedies
as a
result of such issuer’s failure to pay Distributions.
I-5
“Permitted
Remedies”
means,
as to any security or combination of securities, any one or more of
(i) rights in favor of the holders thereof permitting such holders to elect
one or more directors of the Corporation (including any such rights required
by
the listing requirements of any stock or securities exchange on which such
securities may be listed or traded), (ii) prohibitions on the Corporation
paying Distributions on or repurchasing common stock or other securities that
rank junior as to Distributions to such securities for so long as Distributions
on such securities, including deferred distributions, have not been paid in
full
or to such lesser extent as may be specified in the terms of such securities,
and (iii) provisions obliging the Corporation to cause such unpaid
Distributions to be paid in full pursuant to an Alternative Payment
Mechanism.
“Person”
means
any individual, corporation, partnership, joint venture, trust, limited
liability company or corporation, unincorporated organization or government
or
any agency or political subdivision thereof.
“Qualifying
Capital Securities”
shall
mean securities that meet one or more of the following criteria in the
determination of the Board of Directors reasonably construing the definitions
and terms of this Replacement Capital Covenant:
(a) Common
Stock;
(b) Common
Equity Units;
(c) Non-Cumulative
Preferred Stock having either:
(i) (A)
no
maturity or a maturity of at least 60 years and (B) Intent-Based
Replacement Disclosure; or
(ii) (A)
a
maturity of at least 40 years and (B) an Explicit Replacement
Covenant;
(d) preferred
stock having cumulative Distributions and either:
(i) (A)
no
prepayment obligation on the part of the issuer thereof, whether at the election
of the holders or otherwise, and (B) a requirement that the preferred stock
converts into common stock of the Corporation within three years from the date
of issuance at a conversion ratio within a range established at the time of
issuance of the preferred stock; or
(ii) (A)
no
maturity or a maturity of at least 60 years and (B) either an Explicit
Replacement Covenant or Intent-Based Replacement Disclosure; or
I-6
(e) other
securities that
(i) rank
upon
on a liquidation, dissolution or winding-up of the Corporation pari
passu
with or
junior to the Notes; and
(ii) include
a
distribution deferral provision, in the terms thereof or in the related
transaction agreements, substantially similar to Section 4.1 of the Second
Supplemental Indenture; and
(iii) have
a
maturity greater than 30 years with an Explicit Replacement
Covenant.
“Qualifying
Non-Cumulative Preferred Stock”
means
preferred or preference stock of the Corporation that (i) is Non-Cumulative
Preferred Stock, (ii) ranks pari
passu
with or
junior to other preferred stock of the Corporation, (iii) is perpetual and
(iv)
either by its terms or when taken together with any related transaction
agreements has either (A) an Explicit Replacement Covenant or (B) a Mandatory
Trigger Provision and Intent-Based Replacement Disclosure.
“Redesignation
Date”
means,
as to the then effective Covered Debt, the earliest of (i) the date that is
two
years prior to the final maturity date of such Covered Debt, (ii) if the
Corporation elects to redeem, or the Corporation or a Subsidiary of the
Corporation elects to repurchase, such Covered Debt either in whole or in part
with the consequence that after giving effect to such redemption or repurchase
the outstanding principal amount of such Covered Debt is less than $100,000,000,
the applicable redemption or repurchase date and (iii) if the then outstanding
Covered Debt is not Eligible Subordinated Debt, the date on which the
Corporation issues long-term indebtedness for money borrowed that is Eligible
Subordinated Debt.
“Replacement
Capital Covenant”
has
the
meaning specified in the introduction to this instrument.
“Second
Supplemental Indenture”
means
the Second Supplemental Indenture, dated as of October [20], 2006, to the
Indenture, dated as of May 10, 1995, between the Corporation and JPMorgan
Chase Bank, N.A., as trustee.
“Securities
Exchange Act”
means
the Securities Exchange Act of 1934, as amended.
“Subsidiary”
means,
at any time, any Person the shares of stock or other ownership interests of
which having ordinary voting power to elect a majority of the board of directors
or other managers of such Person are at the time owned, or the management or
policies of which are otherwise at the time controlled, directly or indirectly
through one or more intermediaries (including other Subsidiaries) or both,
by
another Person.
I-7
