Recitals
Exhibit
4.3
Replacement
Capital Covenant,
dated
as of September 29, 2006 (this "Replacement
Capital Covenant"),
by
Dominion Resources, Inc., a Virginia 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 $500,000,000 aggregate principal amount
of its Series B Enhanced Junior Subordinated Notes due 2066 (the "Notes").
B.
This
Replacement Capital Covenant is the "Replacement Capital Covenant" referred
to
in the Corporation’s Prospectus Supplement, dated September 26, 2006.
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.
D.
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 their respective
covenants in this Replacement Capital Covenant, each Covered Debtholder would
have sustained an injury as a result of its reliance on such covenants.
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, Repurchase or Purchase of Notes.
The
Corporation hereby promises and covenants to and for the benefit of each Covered
Debtholder that the Corporation shall not redeem or repurchase all or any part
of the Notes on or before September 30, 2036 except to the extent that the
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 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 from
non-affiliates during the 180 days prior to the applicable redemption or
repurchase date from the issuance and sale of Replacement Capital Securities
of
the Corporation (other than Common Stock). For the avoidance of doubt, persons
covered by the Corporation’s dividend reinvestment plan, any direct stock
purchase plan and director 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 with
the
consequence that after giving effect to such redemption the outstanding
principal amount 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 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
a
specific series that has the latest occurring final maturity date as of the
date
on which the Corporation is applying the procedures in this Section 3(b)
and such series shall become the Covered Debt commencing on the related
Redesignation Date;
(D)
the
series of outstanding long-term indebtedness for money borrowed that is
determined to be the 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 the Covered Debt, notice
shall be given as provided for in Section 3(d) within the time frame
provided for in such section.
(c)
Notwithstanding any other provisions of this Replacement Capital Covenant,
(i) if a series of Eligible Senior Debt of the Corporation has become the
Covered Debt in accordance with Section 3(b), on the date on which 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 the Covered Debt.
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(d)
In
order to give effect to the intent of the Corporation described in
Recital C, the Corporation covenants that (i) simultaneously with the
execution of this Replacement Capital Covenant, or as soon as practicable after
the date hereof, notice shall be given to the Holders of the Initial Covered
Debt, in the manner provided in the indenture or other instrument under which
such Initial Covered Debt was issued, of this Replacement Capital Covenant
and
the rights granted to such Holders hereunder; (ii) so long as the
Corporation is a reporting company under the Securities Exchange Act, the
Corporation will include or cause to be included in each Form 10-K filed
with the Commission by the Corporation 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; (iii) if a series of the Corporation’s long-term indebtedness
for money borrowed (1) becomes Covered Debt or (2) ceases to be
Covered Debt, notice of such occurrence will be given within 30 days to the
holders of such long-term indebtedness for money borrowed in the manner provided
for in the indenture or other instrument under which such long-term indebtedness
for money borrowed was issued and report such change in the next Form 10-Q
or
Form 10-K, as applicable, of the Corporation, as applicable; (iv) if, and
only if, the Corporation ceases to be a reporting company under the Securities
Exchange Act, the Corporation will post on its website the information otherwise
required to be included in Securities Exchange Act filings pursuant to clauses
(ii) and (iii) above; and (v) promptly upon the request of any
Holder of Covered Debt, the Corporation will 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) September 30, 2036, (ii) the
date, if any, on which the Holders of at least a majority of the outstanding
principal amount of the then effective 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 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.
(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 a majority of the outstanding principal amount of the then effective
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
(i) solely to impose additional restrictions on the ability of the
Corporation to redeem or repurchase Notes or (ii) not adverse to the
Holders of the then effective Covered Debt and an officer of the Corporation
has
delivered to the Holders of the then effective Covered Debt in the manner
provided for in the indenture or other instrument under which such long-term
indebtedness for money borrowed was issued a written certificate stating that,
in his or her determination, such amendment or supplement is not adverse to
the
Holders of the then effective 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.
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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.
(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 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.
(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) or (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:
Dominion
Resources, Inc.
000
Xxxxxxxx Xxxxxx Xxxxxxxx, XX 00000
Attention:
Treasurer
Facsimile
No: (000) 000-0000
Telephone
No: (000) 000-0000
IN
WITNESS WHEREOF,
the
Corporation has caused this Replacement Capital Covenant to be executed by
a
duly authorized officer as of the day and year first above written.
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DOMINION
RESOURCES, INC.
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By:
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/s/G.
Xxxxx Xxxxxx
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Name:
|
G.
Xxxxx Xxxxxx
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Title:
|
Senior
Vice President and Treasurer
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Schedule
I
Definitions
"Alternative
Payment Mechanism" means,
with respect to any securities or combination of securities referred to in
the
definition of "Replacement Capital Securities," that such securities or related
transaction agreements include a provision to the effect that, if the issuer
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 issuer may or shall, as applicable, unless a Market Disruption
Event has occurred and is continuing, (i) issue and sell APM Qualifying
Securities, subject to the APM Qualifying Securities Caps, during the
180 days prior to each applicable Distribution Date, in an amount such that
the net proceeds of such sale shall equal or exceed such Distributions and
(ii) apply the net proceeds of such sale or sales to pay Distributions to
be paid in full.
"APM
Qualifying Securities"
means:
(a)
Common Stock;
(b)
Qualifying Warrants; and
(c)
non-cumulative perpetual preferred stock, where either (i) the transaction
documents include (x) provisions to the effect that, during periods as to
which the Corporation has failed one or more financial tests, the Corporation
may not pay Distributions on the non-cumulative perpetual preferred stock and
(y) Intent-Based Replacement Disclosure or (ii) such non-cumulative
perpetual preferred stock is subject to a replacement capital covenant
substantially similar to this Replacement Capital Covenant, and in the case
of
both clause (i) and (ii) the transaction documents provide for no
remedies as a consequence of non-payment of Distributions other than Permitted
Remedies (without regard to clause (iii) of the definition of Permitted
Remedies).
"APM
Qualifying Securities Caps"
means:
(i)
in
the case of APM Qualifying Securities that are Common Stock or Qualifying
Warrants, aggregate proceeds from the issuance thereof pursuant to the related
Alternative Payment Mechanism (including at any point in time from all prior
issuances thereof pursuant to such Alternative Payment Mechanism) with respect
to deferred Distributions attributable to the first five years of any deferral
period exceeding an amount equal to 2% of the product of the average of the
current stock market price of the Common Stock on the ten consecutive trading
days ending on the fourth trading day immediately preceding the date of issuance
multiplied by the total number of issued and outstanding shares of Common Stock
as of the date of the Corporation’s most recent publicly available consolidated
financial statements (the "Common Cap"); and
(ii)
in
the case of APM Qualifying Securities that are non-cumulative perpetual
preferred stock, aggregate proceeds from the issuance thereof pursuant to the
related Alternative Payment Mechanism (including at any point in time from
all
prior issuances thereof pursuant to such Alternative Payment Mechanism)
exceeding 25% of the principal or stated amount of the securities that are
the
subject of the related Alternative Payment Mechanism (the "Preferred Cap");
provided (and it being understood) that:
(a)
once
the Corporation reaches the Common Cap, it will not be required to issue more
Common Stock or Qualifying Warrants under the Alternative Payment Mechanism
with
respect to deferred Distributions attributable to the first five years of any
deferral period even if the amount referred to in clause (i) subsequently
increases because of a subsequent increase in the current market price of Common
Stock or the number of outstanding shares of Common Stock; and
I-1
(b)
if,
due to a Market Disruption Event or otherwise, the Corporation is able to raise
some, but not all, of the eligible proceeds necessary to pay all deferred
Distributions on any Distribution Date, the Corporation will apply any available
eligible proceeds to pay accrued and unpaid Distributions on the applicable
Distribution Date in chronological order subject to the APM Qualifying
Securities Caps.
"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 by the Corporation of any Notes,
(i) if such Notes are redeemed or repurchased by the Corporation after the
date hereof and on or before September 30, 2016, 200% and (ii) if such
Notes are redeemed or repurchased by the Corporation after September 30,
2016, 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, if any, sold pursuant to a dividend reinvestment plan,
any direct stock purchase plan or director or employee benefit plan).
"Corporation"
has the
meaning specified in the introduction to this instrument.
"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.
I-2
"Distribution
Date"
means,
as to any security or combination of securities, the dates on which periodic
Distributions on such securities are scheduled to be made.
"Distribution
Period"
means,
as to any security 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. The Notes shall not be considered
"Eligible Debt" for purposes of this Replacement Capital Covenant.
"Eligible
Senior 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 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 (ii) 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 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.
I-3
"Explicit
Replacement Covenant"
means,
as to any security or combination of securities, that the issuer has made a
covenant substantially similar to this Replacement Capital Covenant to the
effect that the issuer will redeem or repurchase such securities only if and
to
the extent that the redemption or repurchase price is equal to or less than
the
net proceeds received from the issuance and sale of Replacement Capital
Securities, substantially as that term is 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 of
the
issuer has determined that such covenant is binding on the issuer for the
benefit of one or more series of the long-term indebtedness for money borrowed
of the issuer (or an affiliate of the issuer, if the covenant so provides)
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.
"Form
10-K"
means an
Annual Report on Form 10-K filed with the Commission under the Securities
Exchange Act, and any successor report.
"Form
10-Q"
means a
Quarterly Report on Form 10-Q filed with the Commission under the Securities
Exchange Act, and any successor report.
"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 8.4% Capital Securities issued on January 12, 2001 by Dominion
Resources Capital Trust III (CUSIP No. 00000XXX0).
"Intent-Based
Replacement Disclosure"
means,
as to any security or combination of securities issued, directly or indirectly,
that the issuer has publicly stated its intention, either in the prospectus
or
other offering document under which such security or combination of securities
were initially offered for sale or in filings with the Commission made by the
issuer or an affiliate under the Securities Exchange Act prior to or
contemporaneously with the issuance of such securities, that the issuer will
redeem or repurchase such securities only with securities that would be
considered Replacement Capital Securities, substantially as that term is 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-4
"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 APM Qualifying
Securities, 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 APM Qualifying Securities that are
non-cumulative perpetual 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.
"Mandatorily
Convertible Preferred Stock"
means
cumulative preferred stock with (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 convert into a determinable
number of shares of Common Stock of the issuer (which may be determinable within
a range) within three years from the date of its issuance.
"Market
Disruption Event"
means
the occurrence or existence of any of the following events or sets of
circumstances:
(i)
trading in securities generally, or in the securities of the issuer (or any
affiliate of the issuer that may issue securities in settlement of an
Alternative Payment Mechanism) specifically, on the New York Stock Exchange
or
any other national securities exchange or over-the-counter market on which
such
securities are then listed or traded shall have been suspended or their
settlement generally shall have been materially disrupted;
I-5
(ii)
the
issuer (or an affiliate as specified in clause (i)) 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 APM Qualifying
Securities and the issuer (or an affiliate as specified in clause (i)) fails
to
obtain that consent or approval notwithstanding the commercially reasonable
efforts of the issuer (or such affiliate) to obtain that consent or approval;
or
(iii)
an
event occurs and is continuing as a result of which the offering document for
the offer and sale of the APM Qualifying Securities would, in the reasonable
judgment of the issuer (or an affiliate as specified in clause (i)), 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 reasonable judgment of the issuer
(or
an affiliate as specified in clause (i)), would have a material adverse effect
on the business of the issuer (or an affiliate as specified in clause (i))
or
(B) the disclosure relates to a previously undisclosed proposed or pending
material business transaction, the disclosure of which would impede the ability
of the issuer or any affiliate 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 Distribution 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.
"Notes"
has
the
meaning specified in Recital A, including any subsequent offerings of additional
notes of the same series.
"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, 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.
"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 issuer or its direct or indirect parent company (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 issuer 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 issuer to cause such unpaid Distributions to be paid in full pursuant to
an
Alternative Payment Mechanism.
I-6
"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
Warrants"
means
net share settled warrants to purchase Common Stock that have an exercise price
greater than the current stock market price of the issuer’s Common Stock as of
their date of issuance, that does not entitle the issuer to redeem for cash
and
the holders of such warrants are not entitled to require the issuer to
repurchase for cash in any circumstance.
"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 issuer 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.
"Replacement
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 other terms of this Replacement Capital Covenant:
(a)
with
respect to Notes that are redeemed or repurchased after the date hereof and
on
or before September 30, 2016:
|
(i)
|
Common
Stock;
|
|
(ii)
|
Common
Equity Units;
|
|
(iii)
|
Mandatorily
Convertible Preferred Stock;
|
|
(iv)
|
Non-Cumulative
Preferred Stock having at least one of the following combination
of
features:
|
|
(A)
|
(1)
no maturity or a final maturity of at least 60 years and
(2) Intent-Based Replacement Disclosure; or
|
|
(B)
|
no
maturity or a final maturity of at least 40 years and (x) an Explicit
Replacement Covenant or (y) Intent-Based Replacement Disclosure and a
Mandatory Trigger Provision; or
|
|
(C)
|
(1)
no maturity or a final maturity of at least 25 years, (2) an Explicit
Replacement Covenant and (3) a Mandatory Trigger Provision;
|
I-7
|
(v)
|
preferred
or preference stock having (1) cumulative Distributions, (2) no
maturity or a final maturity of at least 60 years and (3) an Explicit
Replacement Covenant; or
|
|
(vi)
|
other
securities that rank upon a liquidation, dissolution or winding-up
of the
issuer either (1) pari passu with or junior to the Notes or
(2) pari passu with the claims of the issuer’s trade creditors and
junior to all of the issuer’s long-term indebtedness for money borrowed
(other than the issuer’s long-term indebtedness for money borrowed from
time to time outstanding that by its terms ranks pari passu with
such
securities on a liquidation, dissolution or winding-up of the issuer);
and
at least one of the following combination of features
|
|
(A)
|
(1)
an Optional Deferral Provision, (2) no maturity or a final maturity
of at least 60 years and (3) an Explicit Replacement Covenant, or
|
|
(B)
|
(1)
an Optional Deferral Provision, (2) a Mandatory Trigger Provision,
(3) no maturity or a final maturity of at least 40 years and
(4) Intent-Based Replacement Disclosure, or
|
|
(C)
|
(1)
an Optional Deferral Provision, (2) a Mandatory Trigger Provision,
(3) no maturity or a maturity of at least 25 years and (4) an
Explicit Replacement Covenant; or
|
(b)
with
respect to Notes that are redeemed or repurchased after September 30, 2016,
|
(i)
|
securities
described in paragraph (a) of this definition;
|
|
(ii)
|
preferred
or preference stock, having no maturity or a final maturity of at
least 60
years, and cumulative Distributions and Intent-Based Replacement
Disclosure; or
|
|
(iii)
|
other
securities that rank upon a liquidation, dissolution or winding-up
of the
issuer either (1) pari passu with or junior to the Notes or
(2) pari passu with the claims of the issuer’s trade creditors and
junior to all of the issuer’s long-term indebtedness for money borrowed
(other than the issuer’s long-term indebtedness for money borrowed from
time to time outstanding that by its terms ranks pari passu with
such
securities on a liquidation, dissolution or winding-up of the issuer);
and
at least one of the following combination of features
|
|
(A)
|
(1)
an Optional Deferral Provision, (2) no maturity or a maturity of at
least 35 years and (3) an Explicit Replacement Covenant, or
|
|
(B)
|
(1)
an Optional Deferral Provision, (2) a Mandatory Trigger Provision,
(3) no maturity or a maturity of at least 25 years and
(4) Intent-Based Replacement Disclosure.
|
"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.
"Termination
Date"
has the
meaning specified in Section 4.
I-8
