1
EXHIBIT 4.3
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
XXXXXX XXXXXXXX BANKSHARES
INCORPORATED
TO
CHEMICAL BANK,
Trustee
-------------------
Indenture
Dated as of February 1, 1985
-------------------
================================================================================
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UNITED VIRGINIA BANKSHARES INCORPORATED
Conciliation and tie between Trust Indenture Act of 1939 and
Indenture dated as of February 1, 1985
Trust Indenture
Act Section Indenture Section
--------------- -----------------
ss. 310(a)(1) ......................................... 609
(a)(2) ......................................... 609
(a)(3) ......................................... Not Applicable
(a)(4) ......................................... Not Applicable
(b) ............................................ 608
610
ss. 311(a) ............................................ 613(a)
(b) ............................................ 613(b)
(b)(2) ......................................... 703(a)(2)
703(b)
ss. 312(a) ............................................ 701
702(a)
(b) ............................................ 702(b)
(c) ............................................ 702(c)
ss. 313(a) ............................................ 703(a)
(b) ............................................ 703(b)
(c) ............................................ 703(a), 703(b)
(d) ............................................ 703(c)
ss. 314(a) ............................................ 704
(b) ............................................ Not Applicable
(c)(1) ......................................... 102
(c)(2) ......................................... 102
(c)(3) ......................................... Not Applicable
(d) ............................................ Not Applicable
(e) ............................................ 102
ss. 315(a) ............................................ 601(a)
(b) ............................................ 602
703(a)(6)
(c) ............................................ 601(b)
(d) ............................................ 601(c)
(d)(1) ......................................... 601(a)(1)
(d)(2) ......................................... 601(c)(2)
(d)(3) ......................................... 601(c)(3)
(e) ............................................ 514
ss. 316(a) ............................................ 101
(a)(1)(A) ...................................... 502
000
-x-
0
Xxxxx Xxxxxxxxx
Xxx Section Indenture Section
--------------- -----------------
(a)(1)(B) ...................................... 513
(a)(2) ......................................... Not Applicable
(b) ............................................ 508
ss. 317(a)(1) ......................................... 503
(a)(2) ......................................... 504
(b) ............................................ 1003
ss. 318(a) ............................................ 107
--------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
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TABLE OF CONTENTS
PAGE
PARTIES.........................................................................................................1
RECITALS OF THE COMPANY.........................................................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS........................................................................................1
"ACT"...........................................................................................................2
"AFFILIATE".....................................................................................................2
"AUTHENTICATING AGENT"..........................................................................................2
"AUTHORIZED NEWSPAPER"..........................................................................................2
"BANK"..........................................................................................................2
"BOARD OF DIRECTORS"............................................................................................2
"BOARD RESOLUTION"..............................................................................................2
"BUSINESS DAY"..................................................................................................2
"CAPITAL SECURITIES"............................................................................................2
"CAPITAL SECURITY ELECTION FORM"................................................................................2
"CASH PROCEEDS".................................................................................................3
"COMMISSION"....................................................................................................3
"COMMON STOCK"..................................................................................................3
"COMPANY".......................................................................................................3
"COMPANY REQUEST" OR "COMPANY ORDER"............................................................................3
"CONTROLLED SUBSIDIARY".........................................................................................3
"CORPORATE TRUST OFFICE"........................................................................................3
"CORPORATION"...................................................................................................3
Note: This Table of Contents shall not, for any purpose, be deemed to be part of
the Indenture.
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"DEFAULT".......................................................................................................3
"DEFAULTED INTEREST"............................................................................................3
"EVENT OF DEFAULT"..............................................................................................3
"EXCHANGE AGENT"................................................................................................3
"EXCHANGE DATE".................................................................................................3
"EXCHANGE PRICE"................................................................................................3
"EXCHANGE PROCEEDS".............................................................................................4
"HOLDER"........................................................................................................4
"INDENTURE".....................................................................................................4
"INTEREST"......................................................................................................4
"INTEREST PAYMENT DATE".........................................................................................4
"MARKET VALUE"..................................................................................................4
"MATURITY"......................................................................................................4
"OFFICERS' CERTIFICATE".........................................................................................4
"OPINION OF COUNSEL"............................................................................................4
"OPTIONAL SECURITIES FUND"......................................................................................4
"ORIGINAL ISSUE DISCOUNT SECURITY"..............................................................................4
"OUTSTANDING"...................................................................................................4
"PAYING AGENT"..................................................................................................5
"PERPETUAL PREFERRED STOCK".....................................................................................5
"PERSON"........................................................................................................5
"PLACE OF EXCHANGE".............................................................................................6
"PLACE OF PAYMENT"..............................................................................................6
"PREDECESSOR SECURITY"..........................................................................................6
"PRIMARY FEDERAL REGULATOR".....................................................................................6
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"QUALIFYING INVESTMENT".........................................................................................6
"REDEMPTION DATE"...............................................................................................6
"REDEMPTION PRICE"..............................................................................................6
"REGULAR RECORD DATE"...........................................................................................6
"RESPONSIBLE OFFICER"...........................................................................................6
"SECONDARY OFFERING"............................................................................................7
"SECURITIES"....................................................................................................7
"SECURITIES FUND"...............................................................................................7
"SECURITY REGISTER", "SECURITY REGISTRAR"
AND "CO-SECURITY REGISTRAR".................................................................................7
"SENIOR INDEBTEDNESS"...........................................................................................7
"SPECIAL RECORD DATE"...........................................................................................7
"STATED MATURITY"...............................................................................................7
"SUBSIDIARY"....................................................................................................7
"TRUSTEE".......................................................................................................7
"TRUST INDENTURE ACT"...........................................................................................7
"VICE PRESIDENT"................................................................................................7
"VOTING STOCK"..................................................................................................8
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS...............................................................8
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.............................................................8
SECTION 104. ACTS OF HOLDERS....................................................................................9
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY..............................................................9
SECTION 106. NOTICE TO HOLDERS; WAIVER.........................................................................10
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.................................................................10
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS..........................................................10
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SECTION 109. SUCCESSORS AND ASSIGNS............................................................................11
SECTION 110. SEPARABILITY CLAUSE...............................................................................11
SECTION 111. BENEFITS OF INDENTURE.............................................................................11
SECTION 112. GOVERNING LAW.....................................................................................11
SECTION 113. LEGAL HOLIDAYS....................................................................................11
ARTICLE TWO SECURITY FORMS.....................................................................................11
SECTION 201. FORMS GENERALLY...................................................................................11
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION...................................................12
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES..............................................................12
SECTION 302. DENOMINATIONS.....................................................................................14
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING....................................................14
SECTION 304. TEMPORARY SECURITIES..............................................................................15
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE...............................................15
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES..................................................16
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED....................................................17
SECTION 308. PERSONS DEEMED OWNERS.............................................................................18
SECTION 309. CANCELLATION......................................................................................18
SECTION 310. COMPUTATION OF INTEREST...........................................................................18
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE...........................................................19
SECTION 402. APPLICATION OF TRUST MONEY........................................................................20
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ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.................................................................................20
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT................................................21
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.....................................................................................22
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM..................................................................23
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES.................................................................................................24
SECTION 506. APPLICATION OF MONEY COLLECTED....................................................................24
SECTION 507. LIMITATION ON SUITS...............................................................................24
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.......................................................................................25
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES................................................................25
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE....................................................................25
SECTION 511. DELAY OR OMISSION NOT WAIVER......................................................................26
SECTION 512. CONTROL BY HOLDERS................................................................................26
SECTION 513. WAIVER OF PAST DEFAULTS...........................................................................26
SECTION 514. UNDERTAKING FOR COSTS.............................................................................27
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS..................................................................27
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES...............................................................27
SECTION 602. NOTICE OF DEFAULTS................................................................................28
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.........................................................................29
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE
OF SECURITIES..............................................................................................30
SECTION 605. MAY HOLD SECURITIES...............................................................................30
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SECTION 606. MONEY HELD IN TRUST...............................................................................30
SECTION 607. COMPENSATION AND REIMBURSEMENT....................................................................30
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS...........................................................31
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY...........................................................36
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.................................................36
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR............................................................38
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS...................................................................................................39
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.................................................39
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT...............................................................43
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS....................................................................................................44
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO
HOLDERS....................................................................................................45
SECTION 703. REPORTS BY TRUSTEE................................................................................46
SECTION 704. REPORTS BY-COMPANY................................................................................47
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON
CERTAIN TERMS..............................................................................................48
SECTION 802. SUCCESSOR CORPORATION SUBSTITUTED.................................................................48
ARTICLE NINE
SUPPLEMENTAL INDENTURE
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS................................................49
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS...................................................50
SECTION 903. EXECUTION OF SUPPLEMENTAL XXXXXXXXXX..............................................................00
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XXXXXXX 000. EFFECT OF SUPPLEMENTAL INDENTURES.................................................................51
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT...............................................................51
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES................................................52
SECTION 907. SUBORDINATION UNIMPAIRED..........................................................................52
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.......................................................52
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY..................................................................52
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST................................................53
SECTION 1004. CORPORATE EXISTENCE..............................................................................54
SECTION 1005. MAINTENANCE OF PROPERTIES........................................................................54
SECTION 1006. PAYMENT OF TAXES AND OTHER CLAIMS................................................................54
SECTION 1007. LIMITATION ON ISSUE AND DISPOSITION OF VOTING STOCK OF,
AND MERGER AND SALE OF ASSETS BY, THE BANK.................................................................55
SECTION 1008. STATEMENT AS TO COMPLIANCE.......................................................................56
SECTION 1009. WAIVER OF CERTAIN COVENANTS......................................................................56
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.........................................................................56
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE............................................................57
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED................................................57
SECTION 1104. NOTICE OF REDEMPTION.............................................................................57
SECTION 1105. DEPOSIT OF REDEMPTION PRICE......................................................................58
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE............................................................58
SECTION 1107. SECURITIES REDEEMED IN PART......................................................................58
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.........................................................................59
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES............................................59
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND........................................................59
ARTICLE THIRTEEN
EXCHANGE OF CAPITAL SECURITIES FOR SECURITIES
SECTION 1301. APPLICABILITY OF ARTICLE.........................................................................60
SECTION 1302. EXCHANGE OF CAPITAL SECURITIES...................................................................60
SECTION 1303. NOTICES OF EXCHANGE..............................................................................60
SECTION 1304. RIGHTS AND DUTIES OF HOLDERS OF SECURITIES TO BE
EXCHANGED FOR CAPITAL SECURITIES...........................................................................62
SECTION 1305. DEPOSIT OF EXCHANGE PRICE........................................................................64
SECTION 1306. SECURITIES DUE ON EXCHANGE DATE; SECURITIES
EXCHANGED IN PART..........................................................................................64
SECTION 1307. FORM OF CAPITAL SECURITY ELECTION FORM...........................................................64
SECTION 1308. COVENANTS OF THE COMPANY.........................................................................65
SECTION 1309. REVOCATION OF OBLIGATION TO EXCHANGE CAPITAL
SECURITIES FOR SECURITIES..................................................................................66
SECTION 1310. OPTIONAL SECURITIES FUND.........................................................................66
SECTION 1311. PROVISION IN CASE OF CONSOLIDATION, MERGER
OR TRANSFER OF ASSETS......................................................................................67
SECTION 1312. RESPONSIBILITY OF TRUSTEE........................................................................67
ARTICLE FOURTEEN
SECURITIES FUNDS
SECTION 1401. CREATION OF A SECURITIES FUND....................................................................68
SECTION 1402. DEPOSITS INTO A SECURITIES FUND..................................................................68
SECTION 1403. COVENANT OF THE COMPANY TO SELL OR CAUSE TO BE SOLD
CAPITAL SECURITIES AND DEPOSIT PROCEEDS....................................................................69
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SECTION 1404. INVESTMENT OF MONEYS IN A SECURITIES FUND........................................................70
SECTION 1405. REPAYMENT TO THE COMPANY FROM A SECURITIES FUND..................................................70
SECTION 1406. PAYMENT TO PAYING AGENT FROM A SECURITIES FUND...................................................70
ARTICLE FIFTEEN
SUBORDINATION OF SECURITIES
SECTION 1501. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS....................................................71
SECTION 1502. TRUSTEE AND HOLDERS OF SECURITIES MAY RELY ON
CERTIFICATE OF LIQUIDATING AGENT; TRUSTEE MAY REQUIRE FURTHER
EVIDENCE TO OWNERSHIP OF SENIOR INDEBTEDNESS; TRUSTEE NOT
FIDUCIARY HOLDERS TO SENIOR
INDEBTEDNESS...............................................................................................73
SECTION 1503. PAYMENT PERMITTED IF NO DEFAULT..................................................................73
SECTION 1504. TRUSTEE AND EXCHANGE AGENT NOT CHARGED WITH
KNOWLEDGE OF PROHIBITION...................................................................................74
SECTION 1505. TRUSTEE TO EFFECTUATE SUBORDINATION..............................................................74
SECTION 1506. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS...............................................75
SECTION 1507. ARTICLE APPLICABLE TO PAYING AGENTS..............................................................75
SECTION 1508. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR
OMISSIONS OF THE COMPANY OR HOLDERS OF SENIOR INDEBTEDNESS.................................................75
TESTIMONIAL....................................................................................................76
SIGNATURES.....................................................................................................76
ACKNOWLEDGMENTS................................................................................................76
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INDENTURE, dated as of February 1, 1985, between UNITED VIRGINIA
BANKSHARES INCORPORATED, a corporation duly organized and existing under the
laws of the Commonwealth of Virginia (herein called the "Company"), having its
principal office at 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000, and CHEMICAL
BANK, a corporation duly organized and existing under the laws of the State of
New York, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
subordinated debentures, notes or other evidences of indebtedness (herein called
the "Securities"), to be issued in one or more series as in this Indenture
provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutual covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are fined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles and, except as otherwise herein
expressly provided, the term "generally accepted accounting principles"
with respect to any computation required or permitted hereunder shall
mean such accounting principles as are generally accepted at the date
of such computation; and
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(4) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate Securities.
"Authorized Newspaper" means a newspaper of general circulation in the
relevant area, printed in the English language and customarily published on each
Business Day therein.
"Bank" means United Virginia Bank and (i) any successor or successors
to all or substantially all of the business of United Virginia Bank as presently
constituted (ii) any surviving corporation or transferee corporation referred to
in Section 1007.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of officers and/or directors of the Company
appointed by that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
to close.
"Capital Securities" means any securities issued by the Company which
consist of any one of the following: (i) Common Stock, (ii) Perpetual Preferred
Stock, or (iii) other securities which at the date of issuance constitute
primary capital of the Company under regulations of or as determined by the
Company's Primary Federal Regulator, provided that if any securities under (iii)
are (x) issued in exchange for Securities under this Indenture and (y) are debt
obligations which are themselves exchangeable for Capital Securities as defined
herein, the Company shall have received the approval of the Company's Primary
Federal Regulator for such issuance. Capital Securities may have such terms,
rights and preferences as may be determined by the Company.
"Capital Security Election Form" means a form substantially in the form
included in Section 1307.
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"Cash Proceeds" has the meaning specified in Section 1402.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or, if
at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Stock" means any stock of any class of the Company which has no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its President or a Vice President, and by
its Treasurer, an Assistant Treasurer, its Controller, an Assistant Controller,
its Secretary or an Assistant Secretary, and delivered to the Trustee.
"Controlled Subsidiary" means a Subsidiary more than 80% of the
outstanding shares of Voting Stock of which is owned directly or indirectly, by
the Company, or by one, or more other Controlled Subsidiaries, or by the Company
and one or more other Controlled Subsidiaries.
"Corporate Trust Office" means the principal office of the Trustee in
the Borough of Manhattan, The City of New York, at which at any particular time
its corporate trust business shall be administered, which office at the date of
execution of this Indenture is located at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
"Corporation" includes corporations, associations, companies and
business trusts.
"Default" has the meaning specified in Section 503.
"Defaulted Interest" has the meaning specified in Section 307.
"Event of Default" has the meaning specified in Section 501.
"Exchange Agent" means the Person or Persons appointed by the Company
to give notices and to exchange Securities of any series for Capital Securities
as specified in Article Thirteen.
"Exchange Date", when used with respect to the Securities of any
series, means any date on which such Securities are to be exchanged for Capital
Securities pursuant to this Indenture.
"Exchange Price", when used with respect to any Security of any series
to be exchanged for Capital Securities, means the amount of Capital Securities
for which such Security is to be
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exchanged pursuant to this Indenture or the aggregate sale price of such Capital
Securities in the Secondary Offering for the account of the Holder of such
Security as the case may be.
"Exchange Proceeds" has the meaning specified in Section 1402.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"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 pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 301.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Market Value" of any Capital Securities issued on any Exchange Date
for Securities of any series shall be the sale price of such Capital Securities
as are sold in the Secondary Offering for the account of the Holders of the
Securities of such series. In the event no such Secondary Offering takes place,
the Market Value of such Capital Securities shall be the fair value of such
Capital Securities on such Exchange Date as determined by three independent
nationally recognized investment banking firms selected by the Company,
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board of Directors or the President or a Vice Chairman or a Vice President,
and by the Treasurer, an Assistant Treasurer, the Controller, an Assistant
Controller, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be satisfactory to the Trustee.
"Optional Securities Fund" means the fund for the Securities of any
series created pursuant to the provisions of Section 1310.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
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(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money or
Capital Securities, as the case may be, in the necessary amount have
been theretofore deposited with the Trustee or any Paying Agent or, in
the case of exchange, the Exchange Agent (other than the Company) in
trust or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent or Exchange Agent) for the
Holders of such Securities; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Company and
the Trustee has been made and, provided further, that if such
Securities are being exchanged, the Exchange Date has occurred; and
(iii) Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith may
be regarded as outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee' s right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Perpetual Preferred Stock" means any stock of any class of the Company
which has a preference over Common Stock in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company and which is not mandatorily redeemable or repayable,
or redeemable or repayable at the option of the Holder, otherwise than in shares
of Common Stock or Perpetual Preferred Stock of another class or series with the
proceeds of the sale of Common Stock or Perpetual Preferred Stock.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
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"Place of Exchange", when used with respect to Securities of any
series, means any place where the Securities of such series are exchangeable for
Capital Securities as specified as contemplated by Section 301.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Primary Federal Regulator" means the primary United States Federal
regulator of the Company (which at the date of this Indenture is the Board of
Governors of the Federal Reserve System), or any successor body or institution.
"Qualifying Investment" for any Securities Fund means (i) any debt
security of or guaranteed by the United States of America or any agency thereof,
(ii) any debt security (including any security of the Company or any Subsidiary
of the Company) which at the time is rated in any of the four highest categories
(including any subdivision thereof) by any securities rating agency nationally
recognized in the United States of America and (iii) time deposits with,
including certificates of deposit issued by, any bank or trust company
(including any Subsidiary of the Company), any unsecured debt security of which
(or any unsecured debt security of the parent of which) is at the time rated in
any of the four highest categories (including any subdivision hereof) by any
securities rating agency nationally recognized in the United States, provided,
in each case, that such security or deposit matures on or before the Stated
Maturity of the Securities of the series to which such Securities Fund relates.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular
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corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Secondary Offering", when used with respect to the Securities of any
series, means the offering and sale by the Company of Capital Securities for the
account of Holders of Securities of such series who elect to receive cash and
not Capital Securities on the Exchange Date for such series.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Securities Fund" means the fund for the Securities of any series
created pursuant to the provisions of Section 1401.
"Security Register", "Security Registrar" and "Co-Security Registrar"
have the respective meanings specified in Section 305.
"Senior Indebtedness" means any obligation of the Company to its
creditors, whether now outstanding or subsequently incurred, other than (i) any
obligation as to which, in the instrument creating or evidencing the same or
pursuant to which the same is outstanding, it is provided that such obligation
is not Senior Indebtedness and (ii) obligations evidenced by the Securities.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
shares of Voting Stock of which is owned, directly or indirectly, by the Company
or by one or more other Subsidiaries, or by the Company and one or more other
Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
with respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean or include
each Person who is then a Trustee hereunder, and if at any time there is more
than one such Person, "Trustee" as used with respect to the Securities of any
series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed, except as provided in
Section 905.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
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"Voting Stock" means stock which ordinarily has voting power for the
election of directors, whether at all times or only so long as no senior class
of stock has such voting power by reason of any contingency.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(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 each such
individual, 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, in the opinion of each
such individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matter be certified by, or covered by the opinion of, only one such Person,
or that they be so certified or covered by only one document, but one such
Person may certify or give an opinion with respect to some matters and one or
more other such Person as to other matters, and any such Person may certify or
give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of
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the Company stating that the information with respect to such factual matters is
in the possession of the Company, unless such counsel knows, or in the exercise
of reasonable care should know that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution any such instrument or
writing, or the authority of the person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made,
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given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Trustee Administration
Department, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to the attention of its Secretary at
000 Xxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000, or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case, by reason of the suspension of publication of any Authorized
Newspaper, or by reason of any other cause, it shall be impossible or
impracticable to make publication of any notice in an Authorized Newspaper or
Authorized Newspapers as required by this Indenture or by the Securities, then
such method of publication or notification as shall be made with the approval of
the Trustee shall constitute a sufficient publication of such notice.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
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SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior indebtedness and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the Commonwealth of Virginia, provided that the
rights, duties, standard of care and immunities of the Trustee in connection
with the administration of its trust hereunder shall be governed by the laws of
the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Exchange
Date or Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or the Security) payment
of interest or principal (and premium, if any) or exchange of Securities for
Capital Securities or cash need not be made on such date, but may be made on the
next succeeding Business Day with the same force and effect as if made on the
Interest Payment Date, Redemption Date, Exchange Date or at the Stated Maturity,
and no interest shall accrue for the period from and after such Interest Payment
Date, Redemption Date, Exchange Date or Stated Maturity, as the case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the form
established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities. If the form of Securities of
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any series is established by action taken pursuant to a Board Resolution, a copy
of an appropriate record of such action shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior
to the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication on all Securities shall be
in substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
CHEMICAL BANK,
as Trustee
By:
----------------------------
Authorized Officer
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series,
(1) the title of the Securities of the series
(which shall distinguish the Securities of the series from all
other Securities);
(2) any limit upon the aggregate principal
amount of the Securities of the series which may be
authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306,
906, 1107 or 1306);
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(3) the date or dates on which the principal of
the Securities of the series is payable;
(4) the rate or rates at which the Securities of
the series shall bear interest, if any, the date or dates from
which such interest shall accrue, the Interest Payment Dates
on which such interest shall be payable and the Regular Record
Date for the interest payable on any Interest Payment Date;
(5) the place or places, if any, in addition to
the Borough of Manhattan, The City of New York, and the City
of Richmond, Virginia, where the principal of (and premium, if
any) and interest on Securities of the series shall be
payable;
(6) the period or periods within which, the
price or prices at which, and the terms and conditions upon
which, Securities of the series may be redeemed in whole or in
part, at the option of the Company;
(7) the obligation, if any, of the Company to
redeem or purchase Securities of the series pursuant to any
sinking fund or analogous provisions or at the option of a
Holder thereof and the period or periods within which, the
price or prices at which, and the terms and conditions upon
which, Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(8) the place or places at which, the period or
periods within which, the price or prices at which and the
terms and conditions upon which Securities shall be
exchangeable for Capital Securities of the Company, which
terms and conditions shall not be inconsistent with Article
Thirteen;
(9) any covenant or option of the Company to
create a Securities Fund for the repayment of the Securities
and the terms and conditions of such Securities Fund,
including the latest maturity date of any Qualifying
Investment, which terms and conditions shall not be
inconsistent with Article Fourteen;
(10) if other than denominations of $1,000 and
any integral multiple thereof, the denominations in which
Securities of the series shall be issuable;
(11) any Events of Default with respect to
Securities of such series, if not set forth herein;
(12) if other than the principal amount thereof,
the portion of the principal amount of Securities of the
series which shall be payable upon declaration of acceleration
of the Maturity thereof pursuant to Section 502; and
(13) any other terms of the series (which terms
shall not be inconsistent with the provisions of this
Indenture).
The Securities shall be subordinate and junior in right of payment to
Senior Indebtedness of the Company as provided in Article Fifteen.
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All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such Board Resolution and set forth in such Officers' Certificate or in any
such indenture supplemental hereto.
At the option of the Company, interest on the Securities of any series
that bears interest may be paid by mailing a check to the address of the person
entitled thereto as such address shall appear in the Security Register.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers,
Certificate setting forth the terms of the series.
SECTION 302. Denominations.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by (i) the
Chairman or a Vice Chairman of the Board of Directors or its President or one of
its Vice Presidents and (ii) its Treasurer or any Assistant Treasurer or its
Secretary or any Assistant Secretary, under its corporate seal which may, but
need not, be attested. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
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 Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order and subject to the provisions hereof shall authenticate
and deliver such Securities.
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 which is not reasonably acceptable to the
Trustee.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially
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in the form provided for herein executed by the Trustee by manual signature, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of the same series of authorized denominations.
Until so exchanged the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities
of such series.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the office of the Security
Registrar designated pursuant to this Section 305 or Section 1002 a register
(referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Securities and of transfers of Securities. United Virginia Bank, a Subsidiary
of the Company, having its principal place of business at 000 Xxxx Xxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxx 00000, is hereby initially appointed Security Registrar and
the Trustee is hereby initially appointed a Co-Security Registrar in each case
for the purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
a like aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall
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authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than an
exchange pursuant to Section 304, 906, 1107 or 1306 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed
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in relation thereto and any other expenses (including the fees and expenses of
the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security of
such series and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount
of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date
of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Securities of
such series at his address as it appears in the Security
Register, not less than 10 days prior to such Special
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Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons
in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close
of business on such Special Record Date and shall no longer be
payable pursuant to the following Clause (2).
(2) The Company may make payment of any
Defaulted Interest on the Securities of any series in any
other lawful manner not inconsistent with the requirements of
any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this Clause, such manner
of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if
any) and (subject to Section 307) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by this Indenture. All cancelled Securities held by the Trustee shall be
disposed of as directed by a Company Order.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a year of twelve 30-day months.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights to exchange Securities for Capital Securities
or rights of registration of transfer or exchange of Securities herein expressly
provided for), and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when
(1) either
(A) all Securities theretofore
authenticated and delivered (other than (i)
Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in
Section 306 and (ii) Securities for whose payment
money has theretofore been deposited in trust or
segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from
such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore
delivered to the Trustee for cancellation
(i) have become due and
payable, or
(ii) will become due and
payable at their Stated Maturity within one
year, or
(iii) are to be called for
redemption within one year under
arrangements satisfactory to the Trustee for
the giving of notice of redemption by the
Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii)
above, has deposited or caused to be deposited with
the Trustee as trust funds in trust for the purpose
an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest to the
date of such deposit (in the case of Securities which
have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid
all other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein
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provided for relating to the satisfaction and discharge of
this indenture have been complied with.
In the event there are Securities of two or more series hereunder, the Trustee
shall be required to execute an instrument acknowledging satisfaction and
discharge of this Indenture only if requested to do so with respect to
Securities of all series as to which it is Trustee and if the other conditions
thereto are met. In the event there are two or more Trustees hereunder, then the
effectiveness of any such instrument shall be conditioned upon receipt of such
instruments from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 and to any Holder
pursuant to Section 1308, the rights and remedies of the Trustee under Articles
Five and Six with respect to the enforcement of Section 1308, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee. All money deposited with the Trustee pursuant to Section 401 (and held
by it or any Paying Agent) for the payment of Securities subsequently exchanged
for Capital Securities shall be returned to the Company upon Company Request.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be occasioned by the provisions of Article
Fifteen or be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) the entry of a decree or order for relief in
respect of the Company by a court having jurisdiction in the
premises in an involuntary case or proceeding under any
applicable federal or state bankruptcy, insolvency or other
similar law now or hereinafter in effect, or appointing a
receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Company or of
any substantial part of its property, or ordering the winding
up or liquidation of its
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affairs, and the continuance of any such decree or order
unstayed and in effect for a period of 60 consecutive days;
or
(2) the commencement by the Company of a
voluntary case under any applicable federal or state
bankruptcy, insolvency or other similar law now or
hereinafter in effect, or the consent by the Company to the
entry of a decree or order for relief in an involuntary case
under any such law or to the appointment of a receiver,
liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Company or of any substantial
part of its property, or the making by the Company of an
assignment for the benefit of creditors, or the admission by
the Company in writing of its inability to pay its debts
generally as they become due, or the taking of corporate
action by the Company in furtherance of any such action; or
(3) any other Event of Default provided with
respect to Securities of such series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) of all
of the Securities of that series to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon
any such declaration such principal amount (or specified amount) shall become
immediately due and payable in cash.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue interest on all
Securities of that series,
(B) the principal of (and premium, if
any, on) any Securities of that series which have
become due otherwise than by such declaration of
acceleration and interest thereon at the rate or
rates prescribed therefor in such Securities,
(C) to the extent that payment of such
interest is lawful, interest upon overdue interest
at the rate or rates prescribed therefor in such
Securities, and
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(D) all sums paid or advanced by the
Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee,
its agents and counsel;
and
(2) all Events of Default with respect to
Securities of that series, other than the nonpayment of the
principal of Securities of that series which have become due
solely by such declaration of acceleration, have been cured
or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee.
The Company covenants that if
(1) default is made in the payment of any
interest on any Security when such interest becomes due and
payable and such default continues for a period of 30 days,
or
(2) default is made in the payment (including
any obligation to exchange Capital Securities for Securities
of a series pursuant to Article Thirteen) of the principal of
(or premium, if any, on) any Security at the Maturity
thereof, or
(3) default is made in the deposit of any
sinking fund payment, when and as due by the terms of any
Security, or
(4) default is made in any required deposit of
funds into a Securities Fund or
(5) default is made in the performance of any
covenant or a breach occurs in any warranty of the Company in
this Indenture (other than a covenant or warranty a default
in whose performance or whose breach is elsewhere in this
Section specifically dealt with or which has been expressly
included in this Indenture solely for the benefit of other
series of Securities), and such default or breach continues
for a period of 30 days after there has been given, by
registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities of such
series, a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder;
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, including the
delivery of any Capital Securities then required to be delivered, and, to the
extent that the payment of such interest shall be legally enforceable,
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interest on any overdue principal (and premium, if any) and on any overdue
interest, at the rate or rates prescribed therefor in such Securities, and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts (including the delivery of
any Capital Securities then required to be delivered) forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid and the delivery of any Capital Securities required to be delivered and
not so delivered, may prosecute such proceeding to judgment or final decree and
may enforce the same against the Company or any other obligor upon such
Securities and collect the moneys (or moneys equal to the principal amount of
any Securities for which such Capital Securities were to be exchanged) adjudged
or decreed to be payable in the manner provided by law out of the property of
the Company or any other obligor upon such Securities, wherever situated.
If an Event of Default or a default or breach referred to in this
Section 503 together with any notice or passage of time referred to in this
Section (herein called a "Default") with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Securities and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims without Possession of
Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. Application of Money Collected.
Subject to Article Fifteen, any money collected by the Trustee
pursuant to this Article shall be applied in the following order, at the date
or dates fixed by the Trustee and, in case of the distribution of such money on
account of principal (or premium, if any) or interest, upon presentation of the
Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities 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.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given written
notice to the Trustee of a continuing Event of Default or
Default with respect to the Securities of that series;
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(2) the Holders of not less than 25% in
principal amount of the Outstanding Securities of that Series
shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default or Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to
institute any such proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day
period by the Holders of a majority in principal amount of
the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders or Holders of any other series, or to obtain or to seek to obtain
priority or preference over any other of such Holders or to enforce any right
under this Indenture, except in the manner herein provided and for the equal
and ratable benefit of all of such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest on such Security on the Stated Maturity or Stated
Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and (if the terms of such Security so provide) to have such
Security exchanged for Capital Securities pursuant to Article Thirteen and to
institute suit for the enforcement of any such payment or exchange, and such
rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein
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conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default or Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or Default or an acquiescence therein. Every right and remedy given
by this Article or by law to the Trustee or to the Holders may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee or
by the Holders, as the case may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
Place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict
with any rule of law or with this Indenture, and
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of (or
premium, if any) or interest on any Security of such series,
or
(2) in respect of a covenant or provision hereof
which under Article Nine cannot be modified or amended
without the consent of the Holder of each Outstanding
Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default or Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
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SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered 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
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in
principal amount of the Outstanding Securities of any series, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of
(or premium, if any) or interest on any Security on or after the Stated
Maturity or Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date) or for the enforcement of the
right to exchange any Security for Capital Securities as provided in Article
Thirteen.
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not hinder, delay or impede the exercise of
any power herein granted to the Trustee, but will suffer and permit the
exercise of every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with
respect to Securities of any series,
(1) the Trustee undertakes to perform, with
respect to Securities of such series, such duties and only
such duties as are specifically set forth in this Indenture,
and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may, with respect to Securities of such series,
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the
case of any such certificates or opinions which by any
provision hereof are
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specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of
this Indenture.
(b) In case an Event of Default with respect to Securities of any
series has occurred and is continuing, the Trustee shall exercise, with respect
to Securities of such series, 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.
(c) 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) this Subsection shall not be construed to
limit the effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible
Officer, 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 a
majority in principal amount of the Outstanding Securities of
any series relating to the time, method and place of
conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture with respect to the Securities
of such series; and
(4) no provision of this Indenture shall
require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to
it.
(d) Whether or not therein expressly so provided, every provision
of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series, as their names and addresses appear
in the Security Register, notice of such default hereunder known to the
Trustee, 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
of (or premium, if any) or interest on any Security of such series or in the
payment of any sinking fund installment with respect to Securities of any such
series or in the exchange of Capital Securities for Securities of such series,
the Trustee shall be protected in withholding such notice if and so long
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as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders of
Securities of such series; and provided, further, that in the case of any
default of the character specified in Section 501(3) with respect to Securities
of such series, no such notice to Holders of Securities of such series shall be
given until at least 60 days after the occurrence thereof unless otherwise
provided in or pursuant to the Board Resolution or in a supplemental indenture
contemplated by Section 301. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or both
would become, an Event of Default or Default with respect to Securities of such
series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(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, direction, consent, order, bond, debenture,
note, other evidence of indebtedness 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 or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(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, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled
to examine the books, records and premises of the Company, personally or by
agent or attorney;
(g) 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
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responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder; and
(h) the Trustee shall not be charged with knowledge of any Event
of Default or Default with respect to Securities of any series for which it is
acting as Trustee unless either (1) a Responsible Officer of the Trustee (or
any successor group, division or department of the Trustee) shall have actual
knowledge of the Event of Default or Default or (2) written notice of such
Event of Default or Default shall have been given to a Responsible Officer of
the Trustee by the Company, any other obligor on such Securities or by any
Holder of such Securities.
SECTION 604. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities and in documents
relating to any Secondary Offering, except the Trustee's certificates of
authentication, shall be taken as the statements of the Company, and the
Trustee or any Authenticating Agent assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities or any Capital Securities.
The Trustee or any Authenticating Agent shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to
Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder 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 money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time
reasonable compensation for all services rendered by it
hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided
herein, to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the
expenses and
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disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to
its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it
harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses
of defending itself against any claim or liability in
connection with the exercise or performance of any of its
powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to 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. The
claims of the Trustee under this Section shall not be subject to the provisions
of Article Fifteen.
SECTION 608. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting interest,
as defined in this Section, with respect to the Securities of any series, it
shall, within 90 days after ascertaining that it has such conflicting interest,
either eliminate such conflicting interest or resign with respect to the
Securities of that series in the manner and with the effect hereinafter
specified in this Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of Subsection (a) of this Section with respect to the Securities of
any series, the Trustee shall, within 10 days after the expiration of such
90-day period, transmit by mail to all Holders of Securities of that series, as
their names and addresses appear in the Security Register, notice of such
failure.
(c) For the purposes of this Section the Trustee shall be deemed
to have a conflicting interest with respect to the Securities of any series, if
(1) the Trustee is trustee under this Indenture
with respect to the Outstanding Securities of any series
other than that series or is trustee under another indenture
under which any other securities, or certificates of interest
or participation in any other securities, of the Company are
outstanding, unless such other indenture is a collateral
trust indenture under which the only collateral consists of
Securities issued under this Indenture, provided that there
shall be excluded from the operation of this paragraph this
Indenture with respect to the Securities of any series other
than that series or any indenture or indentures under which
other securities, or certificates of interest or
participation in other securities, of the Company are
outstanding, if
(i) this Indenture and such other
indenture or indentures are wholly
unsecured and such other indenture or
indentures are hereafter qualified under
the Trust Indenture Act, unless the
Commission shall have found and declared by
order pursuant to Section 305(b) or Section
307(c) of the Trust Indenture Act that
differences exist between the provisions of
this Indenture
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with respect to Securities of that series
and one or more other series or the
provisions of such other indenture or
indentures which are so likely to involve a
material conflict of interest as to make it
necessary in the public interest or for the
protection of investors to disqualify the
Trustee from acting as such under this
Indenture with respect to the Securities of
that series and such other series or under
such other indenture or indentures, or
(ii) the Company shall have
sustained the burden of proving, on
application to the Commission and after
opportunity for hearing thereon, that
trusteeship under this Indenture with
respect to the Securities of that series
and such other series or such other
indenture or indentures is not so likely to
involve a material conflict of interest as
to make it necessary in the public interest
or for the protection of investors to
disqualify the Trustee from acting as such
under this Indenture with respect to the
Securities of that series and such other
series or under such other indenture or
indentures;
(2) the Trustee or any of its directors or
executive officers is an obligor upon the Securities or an
underwriter for the Company;
(3) the Trustee directly or indirectly controls
or is directly or indirectly controlled by or is under direct
or indirect common control with the Company or an underwriter
for the Company;
(4) the Trustee or any of its directors or
executive officers is a director, officer, partner, employee,
appointee or representative of the Company, or of an
underwriter (other than the Trustee itself) for the Company
who is currently engaged in the business of underwriting,
except that (i) one individual may be a director or an
executive officer, or both, of the Trustee and a director or
an executive officer, or both, of the Company but may not be
at the same time an executive officer of both the Trustee and
the Company; (ii) if and so long as the number of directors
of the Trustee in office is more than nine, one additional
individual may be a director or an executive officers or
both, of the Trustee and a director of the Company; and (iii)
the Trustee may be designated by the Company or by any
underwriter for the Company to act in the capacity of
transfer agent, registrar, custodian, paying agent, fiscal
agent, escrow agent or depositary, or in any other similar
capacity, or, subject to the provisions of paragraph (1) of
this Subsection, to act as trustee, whether under an
indenture or otherwise;
(5) 10% or more of the voting securities of the
Trustee is beneficially owned either by the Company or by any
director, partner or executive officer thereof, or 20% or
more of such voting securities is beneficially owned,
collectively, by any two or xxxx of such persons; or 10% or
more of the voting securities of the Trustee is beneficially
owned either by an underwriter for the
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Company or by any director, partner or executive officer
thereof, or is beneficially owned, collectively, by any two
or more such persons;
(6) the Trustee is the beneficial owner of, or
holds as collateral security for an obligation which is in
default (as hereinafter in this Subsection defined), (i) 5%
or more of the voting securities, or 10% or more of any other
class of security, of the Company not including the
Securities issued under this Indenture and securities issued
under any other indenture under which the Trustee is also
trustee, or (ii) 10% or more of any class of security of an
underwriter for the Company;
(7) the Trustee is the beneficial owner of, or
holds as collateral security for an obligation which is in
default (as hereinafter in this Subsection defined), 5% or
more of the voting securities of any person who, to the
knowledge of the Trustee, owns 10% or more of the voting
securities of, or controls directly or indirectly or is under
direct or indirect common control with, the Company;
(8) the Trustee is the beneficial owner of, or
holds as collateral security for an obligation which is in
default (as hereinafter in this Subsection defined), 10% or
more of any class of security of any person who, to the
knowledge of the Trustee, owns 50% or more of the voting
securities of the Company; or
(9) the Trustee owns, on May 15 in any calendar
year, in the capacity of executor, administrator,
testamentary or inter vivos trustee, guardian, committee or
conservator, or in any other similar capacity, an aggregate
of 25% or more of the voting securities, or of any class of
security, of any person, the beneficial ownership of a
specified percentage of which would have constituted a
conflicting interest under paragraph (6), (7) or (8) of this
Subsection. As to any such securities of which the Trustee
acquired ownership through becoming executor, administrator
or testamentary trustee of an estate which included them, the
provisions of the preceding sentence shall not apply, for a
period of two years from the date of such acquisition, to the
extent that such securities included in such estate do not
exceed 25% of such voting securities or 25% of any such class
of security. Promptly after May 15 in each calendar year, the
Trustee shall make a check of its holdings of such securities
in any of the above-mentioned capacities as of such May 15.
If the Company fails to make payment in full of the principal
of (or premium, if any) or interest on any of the Securities
when and as the same becomes due and payable, and such
failure continues for 30 days thereafter, the Trustee shall
make a prompt check of its holdings of such securities in any
of the above-mentioned capacities as of the date of the
expiration of such 30-day period, and after such date,
notwithstanding the foregoing provisions of this paragraph,
all such securities so held by the Trustee, with sole or
joint control over such securities vested in it, shall, but
only so long as such failure shall continue, be considered as
though beneficially owned by the Trustee for the purposes of
paragraphs (6), (7) and (8) of this Subsection.
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The specification of percentages in paragraphs (5) to (9), inclusive,
of this Subsection shall not be construed as indicating that the ownership of
such percentages of the securities of a person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
paragraph (3) or (7) of this Subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this
Subsection only, (i) the terms "security" and "securities" shall include only
such securities as are generally known as corporate securities, but shall not
include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies or banking firms, or any certificate of interest or participation in
any such note or evidence of indebtedness; (ii) an obligation shall be deemed
to be "in default" when a default in payment of principal shall have continued
for 30 days or more and shall not have been cured; and (iii) the Trustee shall
not be deemed to be the owner or holder of (A) any security which it holds as
collateral security, as trustee or otherwise, for an obligation which is not in
default as defined in Clause (ii) above, or (B) any security which it holds as
collateral security under this Indenture, irrespective of any default
hereunder, or (C) any security which it holds as agent for collection, or as
custodian, escrow agent or depositary, or in any similar representative
capacity.
(d) For the purposes of this Section:
(1) The term "underwriter", when used with
reference to the Company, means every person who, within
three years prior to the time as of which the determination
is made, has purchased from the Company with a view to, or
has offered or sold for the Company in connection with, the
distribution of any security of the Company outstanding at
such time, or has participated or has had a direct or
indirect participation in any such undertaking, or has
participated or has had a participation in the direct or
indirect underwriting of any such undertaking, but such term
shall not include a person whose interest was limited to a
commission from an underwriter or dealer not in excess of the
usual and customary distributors' or sellers' commission.
(2) The term "director" means any director of a
corporation or any individual performing similar functions
with respect to any organization, whether incorporated or
unincorporated.
(3) The term "person" means an individual, a
corporation, a partnership, an association, a joint-stock
company, a trust, an unincorporated organization or a
government or political subdivision thereof. As used in this
paragraph, the term "trust" shall include only a trust where
the interest or interests of the beneficiary or beneficiaries
are evidenced by a security.
(4) The term "voting security" means any
security presently entitling the owner or holder thereof to
vote in the direction or management of the affairs of a
person, or any security issued under or pursuant to any
trust, agreement or arrangement whereby a trustee or trustees
or agent or agents for the owner or holder of such security
are presently entitled to vote in the direction or management
of the affairs of a person.
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(5) The term "Company" means any obligor upon
the Securities.
(6) The term "executive officer" means the
president, every vice president, every trust officer, the
cashier, the secretary and the treasurer of a corporation,
and any individual customarily performing similar functions
with respect to any organization whether incorporated or
unincorporated, but shall not include the chairman of the
board of directors.
(e) The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance with the following
provisions:
(1) A specified percentage of the voting
securities of the Trustee, the Company or any other person
referred to in this Section (each of whom is referred to as a
"person" in this paragraph) means such amount of the
outstanding voting securities of such person as entitles the
holder or holders thereof to cast such specified percentage
of the aggregate votes which the holders of all the
outstanding voting securities of such person are entitled to
cast in the direction or management of the affairs of such
person.
(2) A specified percentage of a class of
securities of a person means such percentage of the aggregate
amount of securities of the class outstanding.
(3) The term "amount" when used in regard to
securities, means the principal amount if relating to
evidences of indebtedness, the number of shares if relating
to capital shares and the number of units if relating to any
other kind of security.
(4) The term "outstanding" means issued and not
held by or for the account of the issuer. The following
securities shall not be deemed outstanding within the meaning
of this definition:
(i) securities of an issuer held
in a sinking fund relating to securities of
the issuer of the same class;
(ii) securities of an issuer held
in a sinking fund relating to another class
of securities of the issuer, if the
obligation evidenced by such other class of
securities is not in default as to
principal or interest or otherwise;
(iii) securities pledged by the
issuer thereof as security for an
obligation of the issuer not in default as
to principal or interest or otherwise; and
(iv) securities held in escrow if
placed in escrow by the issuer thereof;
provided, however, that any voting securities of an issuer shall be
deemed outstanding if any person other than the issuer is entitled to exercise
the voting rights thereof.
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(5) A security shall be deemed to be of the same
class as another security if both securities confer upon the
holder or holders thereof substantially the same rights and
privileges; provided, however, that, in the case of secured
evidences of indebtedness, all of which are issued under a
single indenture, differences in the interest rates or
maturity dates of various series thereof shall, not be deemed
sufficient to constitute such series different classes and
provided, further, that, in the case of unsecured evidences
of indebtedness, differences in the interest rates or
maturity dates thereof shall not be deemed sufficient to
constitute them securities of different classes, whether or
not they are issued under a single indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise Corporate trust powers, having a combined capital and surplus
of at least $50,000,000 subject to supervision or examination Federal or State
authority and having its Corporate Trust by Office in the Borough of Manhattan,
The City of New York, if there be such a corporation in the Borough of
Manhattan, The City of New York, qualified and eligible under this Article and
willing to act on reasonable terms. If such corporation publishes reports of
condition at least annually, pursuant to the requirements of said 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. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days after
the giving 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 such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding. Securities of such series, delivered to the Trustee
and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with
Section 608(a) after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
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(2) the Trustee shall cease to be eligible under
Section 609 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of
acting or shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be appointed
or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements
of Section 611, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders of Securities of
such series and accepted appointment in the manner required by Section 611, any
holder who has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Securities Trustee with respect to the Securities of
any series by filing written notice of such event by first-class mail, postage
prepaid, to all holders of Securities of such series as their names and
addresses appear in the Security Register. Each notice shall include the name
of the successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust office.
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SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all 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) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such Provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor Trustee
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be
the vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee and that no
Trustee shall be responsible for any act or failure to act on the part of any
other Trustee hereunder; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein, such retiring Trustee shall
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates have no further responsibility for the
exercise of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture, and each 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 with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and delivery to such
successor Trustee, to the extent contemplated by such supplemental indenture,
the property and money held by such retiring Trustee hereunder with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates.
(c) 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
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all such rights, powers and trusts referred to in paragraph (a) or (b) of this
Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 612. 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 all or substantially all the corporate trust
business of the Trustee, shall be the successor the Trustee hereunder, provided
such corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the
execution or filing of any paper or any further act on the part of any of the
parties hereto. 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.
SECTION 613. Preferential Collection of Claims Against Company.
(a) Subject to Subsection (b) of this Section, if the Trustee
shall be or shall become a creditor, directly or indirectly, secured or
unsecured, of the Company within four months prior to a default, as defined in
Subsection (c) of this Section, or subsequent to such a default, then, unless
and until such default shall be cured, the Trustee shall set apart and hold in
a special account for the benefit of the Trustee individually, the Holders of
the Securities and the holders of other indenture securities, as defined in
Subsection (c) of this Section:
(1) an amount equal to any and all reductions in
the amount due and owing upon any claim as such creditor in
respect of principal or interest, effected after the
beginning of such four months' period and valid as against
the Company and its other creditors, except any such
reduction resulting from the receipt or disposition of any
property described in paragraph (2) of this Subsection, or
from the exercise of any right of set-off which the Trustee
could have exercised if a petition in bankruptcy had been
filed by or against the Company upon the date of such
default; and
(2) all property received by the Trustee in
respect of any claims as such creditor, either as security
therefor, or in satisfaction or composition thereof, or
otherwise, after the beginning of such four months' period,
or an amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, if any, of the
Company and its other creditors in such property or such
proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
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(A) to retain for its own account (i)
payments made on account of any such claim by any
Person (other than the Company) who is liable
thereon, and (ii) the proceeds of the bona fide sale
of any such claim by the Trustee to a third Person,
and (iii) distributions made in cash, securities or
other property in respect of claims filed against
the Company in bankruptcy or receiver ship or in
proceedings for reorganization pursuant to the
Federal Bankruptcy Act or applicable State law;
(B) to realize, for its own account,
upon any property held by it as security for any
such claim, if such property was so held prior to
the beginning of such four months' period;
(C) to realize, for its own account,
but only to the extent of the claim hereinafter
mentioned, upon any property held by it as security
for any such claim, if such claim was created after
the beginning of such four months' period and such
property was received as security therefor
simultaneously with the creation thereof, and if the
Trustee shall sustain the burden of proving that at
the time such property was so received the Trustee
had no reasonable cause to believe that a default,
as defined in Subsection (c) of this Section, would
occur within four months; or
(D) to receive payment on any claim
referred to in paragraph (B) or (C), against the
release of any property held as security for such
claim as provided in paragraph (B) or (C), as the
case may be, to the extent of the fair value of such
property.
For the purposes of Paragraphs (B), (C) and (D), property substituted
after the beginning of such four months' period for property held as security
at the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such Paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned
among the Trustee, the Holders and the holders of other indenture securities in
such manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law, the same percentage of their respective
claims, figured before crediting to the claim of the Trustee anything on
account of the receipt by it from the Company of the funds and property in such
special account and before crediting to the respective claims of the Trustee
and the Holders and the holders of other indenture securities dividends on
claims filed against the Company in bankruptcy or receivership or in
proceedings for reorganization pursuant to the Federal Bankruptcy Act or
applicable State law, but after crediting thereon receipts on account of the
indebtedness represented by their respective claims from all sources other than
from such dividends and from the funds and property so held in such special
account. As used in this
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paragraph, with respect to any claim, the term 'dividends' shall include any
distribution with respect to such claim, in bankruptcy or receivership or
proceedings for reorganization pursuant to the Federal Bankruptcy Act or
applicable State law, whether such distribution is made in cash, securities or
other property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such bankruptcy,
receivership or proceedings for reorganization is pending shall have
jurisdiction (i) to apportion among the Trustee, the Holders and the holders of
other indenture securities, in accordance with the provisions of this
paragraph, the funds and property held in such special account and proceeds
thereof, or (ii) in lieu of such apportionment, in whole or in part, to give to
the provisions of this paragraph due consideration in determining the fairness
of the distributions to be made to the Trustee and the Holders and the holders
of other indenture securities with respect to their respective claims, in which
event it shall not be necessary to liquidate or to appraise the value of any
securities or other property held in such special account or as security for
any such claim, or to make a specific allocation of such distributions as
between the secured and unsecured portions of such claims, or otherwise to
apply the provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning of
such four months' period shall be subject to the provisions of this Subsection
as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such four months' period, it
shall be subject to the provisions of this Section if and only if the following
conditions exist:
(i) the receipt of property or
reduction of claim, which would have given
rise to the obligation to account, if such
Trustee had continued as Trustee, occurred
after the beginning of such four months'
period; and
(ii) such receipt of property or
reduction of claim occurred within four
months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection (a)
of this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities
issued under any indenture, or any security or securities
having a maturity of one year or more at the time of
acquisition by the Trustee;
(2) advances authorized by a receivership or
bankruptcy court of competent jurisdiction or by this
Indenture, for the purpose of preserving any property which
shall at any time be subject to the lien of this Indenture or
of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advances and of the circumstances
surrounding the making thereof is given to the Holders at the
time and in the manner provided in this Indenture;
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(3) disbursements made in the ordinary course of
business in the capacity of trustee under an indenture,
transfer agent, registrar, custodian, paying agent, fiscal
agent or depositary, or other similar capacity;
(4) an indebtedness created as a result of
services rendered or premises rented; or an indebtedness
created as a result of goods or securities sold in a cash
transaction, as defined in Subsection (c) of this Section;
(5) the ownership of stock or of other
securities of a corporation organized under the provisions of
Section 25(a) of the Federal Reserve Act, as amended, which
is directly or indirectly a creditor of the Company; and
(6) the acquisition, ownership, acceptance or
negotiation of any drafts, bills of exchange, acceptances or
obligations which fall within the classification of
self-liquidating paper, as defined in Subsection (c) of this
Section.
(c) For the purposes of this Section only:
(1) the term 'default' means any failure to make
payment in full of the principal of or interest on any of the
Securities or upon the other indenture securities when and as
such principal or interest becomes due and payable;
(2) the term "other indenture securities" means
securities upon which the Company is an obligor outstanding
under any other indenture (i) under which indenture and as to
which securities the Trustee is also trustee, (ii) which
contains provisions substantially similar to the provisions
of this Section, and (iii) under which a default exists at
the time of the apportionment of the funds and property held
in such special account;
(3) the term "cash transaction" means any
transaction in which full payment for goods or securities
sold is made within seven days after delivery of the goods or
securities in currency or in checks or other orders drawn
upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" means any
draft, xxxx of exchange, acceptance or obligation which is
made, drawn, negotiated or incurred by the Company for the
Purpose of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to, possession
of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods,
wares or merchandise previously constituting the security,
provided the security is received by the Trustee
simultaneously with the creation of the creditor relationship
with the Company arising from the making, drawing,
negotiating or incurring of the draft, xxxx of exchange,
acceptance or obligation;
(5) the term "Company" means any obligor upon
the Securities; and
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(6) the term "Federal Bankruptcy Act" means the
Bankruptcy Act or Title 11 of the United States Code.
SECTION 614. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding the Trustee
may appoint an Authenticating Agent or Agents (which may be an Affiliate of the
Company) with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, registration of 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. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
The Trustee at the direction of the Company has initially appointed
United Virginia Bank, Richmond, Virginia as an Authenticating Agent for each
series of Securities issued hereunder, and the Trustee shall incur no liability
for such appointment or for any misconduct or negligence of such Authenticating
Agent. If United Virginia Bank at any time shall cease to be a Subsidiary of
the Company, its duties as an Authenticating Agent shall terminate immediately.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be
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acceptable to the Company and shall mail written notice of such appointment by
first-class mail, postage prepaid, to all Holders of Securities of the series
with respect to which such Authenticating Agent will serve, as their names and
addresses appear in the Security Register. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be reimbursed for such payments, subject to the entitled to
provisions of Section 607.
The provisions of Sections 308, 604 and 605 shall be applicable to
each Authenticating Agent.
Pursuant to each appointment made under this Section, the Securities
of each series covered by such appointment may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within mentioned Indenture.
CHEMICAL BANK,
As Trustee
By:
------------------------------------
As Authenticating Agent
By:
------------------------------------
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) not later than 15 days following any Regular Record Date with
respect to Securities of any series, a list, in such form as the Trustee may
reasonably require, containing all the information in the possession or control
of the Company, or any of its Paying Agents other than the Trustee, or the
Security Registrar, if other than the Trustee, as to the names and addresses of
the Holders of the Securities of such series as of the preceding Regular Record
Date, and
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(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 if and so long as the Trustee is the Security
Registrar with respect to Securities of a particular series, no such list shall
be required with respect to Securities of such series.
SECTION 702. Preservation of Information; Communications to
Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 701 and the
names and address of Holders received by the Trustee in its capacity as
Co-Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list 50 furnished.
(b) If three or more Holders (herein referred to as "applicants")
apply in writing to the Trustee, and furnish to the Trustee reasonable proof
that each such applicant has owned a Security for a period of at least six
months preceding the date of such application, and such application states that
the applicants desire to communicate with other Holders with respect to their
rights under this indenture or under the Securities and is accompanied by a
copy of the form of proxy or other communication which such applicants propose
to transmit, then the Trustee shall, within five business days after the
receipt of such application, at its election, either
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with Section
702(a), or
(ii) inform such applicants as to the approximate number
of Holders whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section
702(a), and as to the approximate cost of mailing to such Holders the
form of proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder whose name and address appear in the
information preserved at the time by the Trustee in accordance with Section
702(a) a copy of the form of proxy or other communication which is specified in
such request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender the
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interest of the Holders or would be in violation of applicable law. Such
written statement shall specify the basis of such opinion. If the Commission,
after opportunity for a hearing upon the objections specified in the written
statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of
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such material to all such Holders with reasonable promptness after the entry of
such order and the renewal of such tender; otherwise the Trustee shall be
relieved of any obligation or duty to such applicants respecting their
application.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 702(b), regardless of the source from which
such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 702(b).
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the
year 1985 the Trustee shall transmit by mail to all Holders, as their names and
addresses appear in the Security Register, a brief report dated as of such May
15 with respect to:
(1) its eligibility under Section 609 and its
qualifications under Section 608, or in lieu thereof, if to
the best of its knowledge it has continued to be eligible and
qualified under said Sections, a written statement to such
effect;
(2) the character and amount of any advances
(and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as such)
which remain unpaid on the date of such report, and for the
reimbursement of which it claims or may claim a lien or
charge, prior to that of the Securities, on any property or
funds held or collected by it as Trustee, except that the
Trustee shall not be required (but may elect) to report such
advances if such advances so remaining unpaid aggregate not
more than 1/2 of 1% of the principal amount of the Securities
Outstanding on the date of such report;
(3) the amount, interest rate and maturity date
of all other indebtedness owing by the Company (or by any
other obligor on the Securities) to the Trustee in its
individual capacity, on the date of such report, with a brief
description of any property held as collateral security
therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in Section
613(b)(2), (3), (4) or (6);
(4) the property and funds, if any, physically
in the possession of the Trustee as such on the date of such
report;
(5) any additional issue of Securities which the
Trustee has not previously reported; and
(6) any action taken by the Trustee in the
performance of its duties hereunder which it has not
previously reported and which in its opinion materially
affects the Securities or the Securities of any series,
except action in respect of a default, notice of which has
been or is to be withheld by the Trustee in accordance with
Section 602.
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(b) The Trustee shall transmit by mail to all Holders, as their
names and addresses appear in the Security Register, a brief report with
respect to the character and amount of any advances (and if the Trustee elects
so to state, the circumstances surrounding the making thereof) made by the
Trustee (as such) since the date of the last report transmitted pursuant to
Subsection (a) of this Section (or if no such report has yet been so
transmitted, since the date of execution of this instrument) for the
reimbursement of which it claims or may claim a lien or charge, prior to that
of the Securities, on property or funds held or collected by it as Trustee and
which it has not previously reported pursuant to this Subsection, except that
the Trustee shall not be required (but may elect) to report such advances if
such advances remaining unpaid at any time aggregate 10% or less of the
principal amount of the Securities Outstanding at such time, such report to be
transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
SECTION 704. Reports by-Company.
The Company shall:
(1) 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) which the Company may be
required to file with the Commission pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934; or,
if the Company is not required to file information, documents
or reports pursuant to either of said Sections, then it shall
file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic
information, documents and reports which may be required
pursuant to Section 13 of the Securities Exchange Act of 1934
in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in
such rules and regulations;
(2) file with the Trustee and the Commission,
in accordance with 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 of this Indenture
as may be required from time to time by such rules and
regulations; and
(3) transmit by mail to all Holders, as their
names and addresses appear in 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 paragraphs (1) and (2)
of this Section as may be
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required by rules and regulations prescribed from time to
time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, unless:
(1) the corporation formed by such consolidation
or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an
entirety shall be a corporation organized and existing under
the laws of the United States of America, any State thereof
or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of (and premium, if any)
and interest on all the Securities and the performance of
every covenant of this Indenture on the part of the Company
to be performed or observed;
(2) immediately after giving effect to such
transaction and treating any indebtedness which becomes an
obligation of the Company or a Subsidiary as a result of such
transaction as having been incurred by the Company or such
Subsidiary at the time of such transaction, no Event of
Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened
and be continuing; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an opinion of Counsel, each stating
that such consolidation, merger, conveyance, transfer or
lease and supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to
such transaction have been complied with.
SECTION 802. Successor Corporation Substituted.
Upon any consolidation by the company with or merger by the Company
into any other corporation or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 801, the successor corporation formed by such consolidation or
into which the Company is merged or to which such conveyance, transfer or lease
is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if such
successor corporation had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor corporation shall be relieved of
all obligations and covenants under this Indenture and the Securities.
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ARTICLE NINE
SUPPLEMENTAL INDENTURE
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another
corporation to the Company and the assumption by any Such
successor of the covenants of the Company herein and in the
Securities; or
(2) to add to the covenants of the Company for
the benefit of the Holders of all or any series of Securities
(and if such covenants are to be for the benefit of less than
all series of Securities, stating that such covenants are
expressly being included solely for the benefit of such
series) or to surrender any right or Power herein conferred
upon the Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the issuance of Securities in bearer form,
registrable or not registrable as to principal, and with or
without interest coupons; or
(5) to change or eliminate any of the provisions
of this Indenture, provided that any such change or
elimination shall become effective only when there is no
Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to
the benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities
of any series as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance
of appointment hereunder by a successor Trustee with respect
to the Securities of one or more series and to add to or
change any of the provisions of this indenture as shall be
necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to
the requirements of Section 611(b); or
(9) to add to or change any provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the issuance of Securities convertible into other
securities, including capital stock; or
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(10) to add to or change provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate, with respect to any series of Securities
established after the date of such addition or change, the
termination of the Company's obligations under this Indenture
with respect to Securities of such series, upon deposit by
the Company in trust for the benefit of the Holders of
Securities of such series of sufficient securities or funds
to satisfy the Company's obligations with respect thereto; or
(11) to cure any ambiguity, to correct or
supplement any provision herein which may be inconsistent
with any other provision herein, or to make any other
provisions with respect to matters or questions arising under
this Indenture, provided such action shall not adversely
affect the interests of the Holders of Securities of any
series in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than 662/3% in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the stated Maturity of the principal
of, or any installment of principal of or interest on, any
Security, or reduce the principal amount thereof or the rate
of interest thereon or any premium payable upon the
redemption thereof, or reduce the amount of the principal of
an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502, or change any Place of
Payment where, or the coin or currency in which, any Security
or any premium or the interest thereon is payable, or impair
the right to institute suit for the enforcement of any such
payment or delivery of Capital Securities exchanged for
Securities pursuant to Article Thirteen on or after the
Stated Maturity thereof (or, in the case of redemption or
exchange, on or after the Redemption Date or Exchange, as the
case may be), or
(2) reduce the percentage in principal amount of
the Outstanding Securities of any series, the consent of
whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(3) modify any of the provisions of this
Section, Section 513 or Section 1009, except to increase any
such percentage or to provide that certain other provisions
of this Indenture cannot be modified or waived without the
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consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to
changes in the references to "the Trustee" and concomitant
changes in this Section and Section 1009 or the deletion of
this proviso, in accordance with the requirements of Sections
611(b) and 901(8), or
(4) impair the right of any Holder of Securities
of any series to receive on any Exchange Date for Securities
of such series Capital Securities with a Market Value equal
to the principal amount of such Holder's Securities of such
series or in an amount sufficient to provide proceeds to such
Holder upon sale by the Company in the Secondary Offering
equal to the principal amount of such Holder's Securities of
such series.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be Sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this indenture, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying upon,
an opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
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SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
SECTION 907. Subordination Unimpaired.
No supplemental indenture executed pursuant to this Article shall
directly or indirectly modify the provisions of Article Fifteen in any manner
which might alter the subordination of the Securities.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture. For all purposes of this indenture,
the exchange of Capital Securities for Securities of any series pursuant to
this Indenture shall constitute full payment of the principal of the Securities
of such series being exchanged on any Exchange Date for Securities of such
series, without prejudice to any Holder's rights pursuant to Section 1308.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. 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, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, Attention: Corporate Trustee
Administration Department, and the Company hereby appoints the Trustee as its
agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain
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an office or agency in each Place of Payment for Securities of any series for
such purposes. The Company will give prompt written notice to the Trustee of
any such designation or rescission and of any change in the location of any
such other office or agency. The Company hereby designates as a Place of
Payment for each series of Securities (i) the Borough of Manhattan, The City of
New York, and appoints the Trustee at its Corporate Trust Office as Paying
Agent in such city and (ii) the City of Richmond, Virginia, and appoints United
Virginia Bank at its principal office as Paying Agent in such city. The Paying
Agent in the City of Richmond, Virginia shall be the principal Paying Agent.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee in writing
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of (and
premium, if any) or interest on any Securities of that series, deposit with the
Paying Agent in the City of Richmond 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 in writing of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of
the principal of (and premium, if any) or interest on
Securities of that series in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee written notice of any
default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment of
principal (and premium, if any) or interest on the Securities
of that series; and
(3) at any time during the continuance of any
such default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by
such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
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Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Security of any series and remaining unclaimed for two
years after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in an Authorized Newspaper
in the Borough of Manhattan, The City of New York, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
SECTION 1004. Corporate Existence.
Subject to Article Eight (in the case of the Company) and to Section
1007(b) (in the case of the Bank), the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and that of each Subsidiary and the rights (charter and statutory)
and franchises of the Company and its Subsidiaries; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Company shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company and its Subsidiaries considered as a
whole and that the loss thereof is not disadvantageous in any material respect
to the Holders.
SECTION 1005. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in
good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company from
discontinuing the operation and maintenance of any of such properties, or
disposing of any of them, if such discontinuance or disposal is, in the
judgment of the Company or of the Subsidiary concerned, desirable in the
conduct of its business or the business of any Subsidiary and not
disadvantageous in any material respect to the Holders.
SECTION 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessment and
governmental charges levied or imposed upon the Company or
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any Subsidiary or upon the income, profits or property of the Company or any
Subsidiary, and (2) all lawful claims for labor, materials and Supplies which,
if unpaid, might by law become a lien upon the property of the Company or any
Subsidiary; provided, however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings and if the Company shall have set aside on its books
adequate reserves with respect thereto (segregated to the extent required by
generally accepted accounting principles).
SECTION 1007. Limitation on Issue and Disposition of Voting Stock
of, and Merger and Sale of Assets by, the Bank.
For so long as any of the Securities shall be Outstanding, the Company
will not
(a) sell, assign, transfer or otherwise dispose of any shares of,
or securities convertible into, or options, warrants or rights to subscribe for
or purchase shares of, Voting Stock of the Bank, and will not permit the Bank
to issue any shares of, or securities convertible into, or options, warrants or
rights to subscribe for or purchase shares of, such Voting Stock if, after
giving effect to any such transaction and to the issuance of the maximum number
of shares of Voting Stock of the Bank issuable upon the exercise of all such
convertible securities, options, warrants or rights, the Bank would cease to be
a Controlled Subsidiary, except as otherwise provided below in this Section
1007, or
(b) permit the Bank to
(i) merge or consolidate with or into any other
corporation unless the surviving corporation is, or upon consummation
of the merger or consolidation will become, a Controlled Subsidiary,
or
(ii) lease, sell or transfer all or substantially all of
its properties and assets to any corporation or other Person, except
to a Controlled Subsidiary or a Person that, upon such lease, sale or
transfer, will become a Controlled Subsidiary.
Notwithstanding subparagraph (a) above, the Company may sell, assign,
transfer or otherwise dispose of any shares of, or securities convertible into,
or options, warrants or rights to subscribe for or purchase shares of, Voting
Stock of the Bank,
(i) in compliance with an order of a court or regulatory
authority of competent jurisdiction or as a condition imposed by such
court or authority to the acquisition by the Company, directly or
indirectly, of any other corporation or entity, or
(ii) when the proceeds from any such sale, assignment,
transfer or disposition are within 270 days, or such longer period of
time as may be necessary to obtain regulatory approvals in connection
therewith, to be invested, pursuant to an understanding or agreement
in principle reached at the time of sale, assignment, transfer or
disposition, in any Controlled Subsidiary (including any Person which
upon such investment becomes a Controlled Subsidiary) engaged in a
banking business or any other business then legally permissible for
bank holding companies and the Company delivers to the Trustee a
written statement, which need not comply with Section 102, signed by
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the President or a Vice President and by the Treasurer, an Assistant
Treasurer, the Controller or an Assistant Controller of the Company,
stating that the proceeds from such sale, assignment, transfer or
disposition have been so invested within such time period. Such
statement shall be delivered to the Trustee within 60 days of the
investment of the proceeds.
SECTION 1008. Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year, a written statement, which need not comply with Section
102, signed by the President or a Vice President and by the Treasurer, an
Assistant Treasurer, the Controller or an Assistant Controller of the Company,
stating, as to each signer thereof, that
(1) a review of the activities of the Company
during such year and of performance under this Indenture has
been made under his supervision, and
(2) to the best of his knowledge, based on such
review, (a) the Company has fulfilled all its obligations
under this Indenture throughout such year, or, if there has
been a default in the fulfillment of any such obligation,
specifying each such default known to him and the nature and
status thereof, and (b) no event has occurred and is
continuing which is, or after notice or lapse of time or both
would become, an Event of Default or Default, or if such an
event has occurred and is continuing, specifying each such
event known to him and the nature and status thereof.
SECTION 1009. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1004 to 1007, inclusive,
with respect to the Securities of any series if before the time for such
compliance the Holders of at least 66 2/3% in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and
the duties of the Trustee in respect of any such term, provision or condition
shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
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SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company shall,
at least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee in
writing of such Redemption Date and of the principal amount of Securities of
such series to be redeemed. In the case of any redemption of Securities prior
to the expiration of any restriction on such redemption provided in the terms
of such Securities or elsewhere in this Indenture, the Company shall furnish
the Trustee with an officers' Certificate evidencing compliance with such
restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series so long the remaining
portion of such Security will be in an authorized denomination for Securities
of such series.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities
of any series are to be redeemed, the identification (and, in
the case of partial redemption, the principal amounts) of the
particular Securities to be redeemed,
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(4) that on the Redemption Date, the Redemption
Price will become due and payable upon each such Security to
be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(5) the place or places where such Securities
are to be surrendered for payment of the Redemption Price,
and
(6) that the redemption is for a sinking fund,
if such is the case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on the date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price, together with accrued
interest to the Redemption Date; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities of the same series, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment" and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided, that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of sinking fund payment shall be
reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and will, prior to or concurrently therewith, deliver
to the Trustee any Securities to be so delivered. Not less than 30 days before
each such sinking fund payment date the Trustee shall select the Securities to
be redeemed upon such sinking fund payment date in the manner specified in
Section 1103 and cause notice of the redemption thereof to be given in the name
of and at the expense of the Company in the manner provided in Section 1104.
Such notice having been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in Sections 1106 and 1107.
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ARTICLE THIRTEEN
EXCHANGE OF CAPITAL SECURITIES FOR SECURITIES
SECTION 1301. Applicability of Article.
The Company shall exchange Capital Securities for the Securities of
any series which are exchangeable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article on a date not later than the Stated
Maturity of the Securities of such series.
SECTION 1302. Exchange of Capital Securities.
The amount of Capital Securities which are exchangeable for each
Security of any series which is so exchangeable shall be set forth in or
established pursuant to a Board Resolution or supplemental indenture
contemplated by Section 301 or, if not so established, shall be Capital
Securities with a Market Value equal to the principal amount of such Security.
The Securities of any series which are exchangeable may be exchanged
at the election of the Company, as a whole or from time to time in part, at
such time and for such Market Value of Capital Securities as is stated in the
terms of the Securities of such series together with accrued and unpaid
interest to the Exchange Date. Such Exchange Date shall be established by
notice to the Holders of the Securities of such series given in the manner
described in Section 1303(a) not less than 90 days nor more than 120 days prior
to such Exchange Date. Notice of such Exchange Date shall also be given in the
manner described in Section 1303(a) not less than 90 nor more than 120 days
prior to the Stated Maturity of the Securities of any series which are
exchangeable. The Exchange Date so established may be accelerated to a date not
more than 60 days prior to the date so established by a later notice given by
the Company in the manner prescribed in Section 1303(b) not less than three
Business Days prior to the accelerated Exchange Date. The Company will effect
each Secondary Offering such that the closing of such Secondary Offering will
occur on the relevant Exchange Date.
No fractional Capital Securities shall be issued upon exchange for any
Securities. If more than one Security of any series shall be surrendered for
exchange at one time by the same Holder, the amount of all Capital Securities
which shall be issuable upon exchange thereof shall be computed on the basis of
the aggregate principal amount of Securities of such series so surrendered. In
lieu of issuing any fractional Capital Security, the Company shall pay a cash
adjustment in respect of such fraction in an amount equal to, the same fraction
of the Market Value of the Capital Security.
SECTION 1303. Notices of Exchange.
(a) All notices subject to this paragraph shall be given to the
Holders of Securities of any series to be exchanged by first-class mail,
postage prepaid, to their addresses as they shall appear on the Security
Register (a copy of which shall promptly be delivered to the Trustee and
Exchange Agent) and shall:
(1) state the Exchange Date and that it is
subject to acceleration in the manner described in Section
1302;
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(2) state the type of Capital Securities to be
exchanged for the Securities of such series on such Exchange
Date;
(3) contain or be accompanied by the form of
Capital Security Election Form specified in Section 1307;
(4) state the identification and the principal
amount of the particular Securities selected to be exchanged
if less than all of the Outstanding Securities of such series
are to be exchanged on such Exchange Date;
(5) state that each Holder of Securities of
such series being exchanged will receive on such Exchange
Date accrued and unpaid interest in cash (subject to Section
307) and may elect to receive Capital Securities with a
Market Value equal to the relevant percentage of the
principal amount of the Securities of such series by
returning the Capital Security Election Form contained in
Section 1307 within the time set forth therein;
(6) state that, in the absence of the election
specified in (5) above, such Holder shall be deemed to have
elected to have Capital Securities sold by the Company in the
related Secondary Offering and the proceeds thereof, together
with accrued and unpaid interest, delivered to such Holder on
the Exchange Date; provided, however, that in the event the
Company does not effect the Secondary Offering, such Holder
will receive on the Exchange Date the Capital Securities
described in the notice and not cash;
(7) state that on such Exchange Date the
Exchange Price will become due and payable, whether in money
or Capital Securities, with respect to each such Security to
be exchanged and that interest thereon will cease to accrue
on and after such Exchange Date;
(8) state that because the Market Value of
Capital Securities sold in the Secondary Offering will be
determined prior to the Exchange Date, Holders of Securities
who elect to receive Capital Securities on the Exchange Date
will bear the market risk with respect to the value of the
Capital Securities to be received from the date such Market
Value is determined to the Exchange Date;
(9) state that each Holder for whom Capital
Securities are being offered in the Secondary Offering shall
be deemed to have appointed the Company its attorney-in-fact
to execute any and all documents and agreements which the
Company deems necessary or appropriate to effect such
Secondary Offering and the precise terms of such appointment;
(10) state that (i) the Company will assume,
unless advised to the contrary in writing, that the Capital
Securities are to be offered for the account of the Holder,
that such Holder has not held any position, office or other
material relationship with the Company within three years
preceding the Secondary Offering, that the Holder owns no
such Capital Securities which are held other than in the name
of the Holder and that after completion of the Secondary
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Offering the Holder will own less than 1% of the class of
such Capital Securities, (ii) if any of these assumptions is
not correct, the Holder shall promptly so advise the Company,
and (iii) a failure on the part of such Holder to promptly
advise the Company of the incorrectness of any of such
assumptions will expose such Holder to liability to the
Company, other Holders of Securities of such series and
underwriters, agents and other similar persons to the extent
set forth in Section 1304(d) and exonerate the Company from
liability to such Holder to the extent set forth in Section
1308(c); and
(11) state the place or places where such
Securities are to be surrendered for payment or exchange for
Capital Securities.
(b) Each notice in accordance with this Section 1303(b) shall be
given to the Holders of Securities of any series to be exchanged by first-class
mail, postage prepaid, to their addresses as they shall appear on the Security
Register and published in an Authorized Newspaper in the Borough of Manhattan,
The City Of New York. The Company shall promptly deliver a copy of each such
notice to the Trustee and Exchange Agent. In the event that there has been a
Secondary Offering, notice shall be given not less than three Business Days
prior to the Exchange Date of the amount of Capital Securities to be exchanged
for each $1,000 principal amount of Securities of such series in a like manner.
(c) If less than all the Securities of any series are to be
exchanged on any Exchange Date, the Company shall at least 15 days prior to the
notice establishing such Exchange Date (unless a shorter period shall be
satisfactory to the Trustee) notify the Trustee of such Exchange Date and of
the principal amount of the Securities of such series to be exchanged, and the
particular Securities to be exchanged shall be selected by the Trustee from the
Outstanding Securities of such series, by such method as the Trustee shall deem
fair and which may provide for the selection for exchange of the portion of the
principal amount of Securities of such series which shall be equal to the
minimum authorized denomination for Securities of such series or any whole
multiple thereof. The Trustee shall promptly notify the Company in writing of
the Securities selected for exchange and, in the case of any Securities
selected for partial exchange, the principal amount thereof to be exchanged.
SECTION 1304. Rights and Duties of Holders of Securities to be
Exchanged for Capital Securities.
(a) Subject to Sections 502 and 503, and without prejudice to the
rights pursuant to Section 1308 of Holders of Securities of any series to be
exchanged, (i) no Holder of Securities of a series which is exchangeable in
accordance with its terms shall be entitled to receive any cash from the
Company on any Exchange Date or at Stated Maturity except from the proceeds of
the sale of Capital Securities in the related Secondary Offering and except as
provided herein in lieu of any fractional Capital Securities and for accrued
and unpaid interest, and (ii) in the event that the Company does not effect a
Secondary Offering to provide cash to Holders of any series of Securities on
any Exchange Date or at Stated Maturity, such Holders shall receive Capital
Securities with a Market Value determined pursuant to the terms of the
Securities of such series and not cash other than in lieu of any fractional
Capital Securities and for accrued and unpaid interest.
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(b) Each Holder for whom Capital Securities are offered in a
Secondary Offering shall be deemed to have appointed the Company its
attorney-in-fact to execute any and all documents and agreements the Company
deems necessary or appropriate to effect such Secondary Offering on such terms
as are set out in the notice described in Section 1303(a).
(c) Unless advised to the contrary in writing within 30 days
following the giving of the notice described in Section 1303(a) by any Holder
for whom Capital Securities are offered in a Secondary Offering, the Company
shall assume for the purposes of such Secondary Offering that the Capital
Securities are to be offered for the account of such Holder, that such Holder
has not held any position, office or other material relationship with the
Company within three years preceding the Secondary Offering, that such Holder
owns no such Capital Securities which are held other than in the name of the
Holder and that after completion of the Secondary Offering such Holder will own
less than 1% of the class of such Capital Securities.
(d) Each Holder for whom Capital Securities are offered in the
Secondary Offering agrees to indemnify and hold harmless the Company, any other
Holder and any underwriter, agent or other similar person from and against any
and all losses, claims, damages and liabilities resulting from or based upon
any untrue statement or alleged untrue statement of any material fact contained
in any notice of exchange, any offering memorandum or selling document or
registration statement relating to the Secondary Offering, any preliminary
prospectus or prospectus relating thereto, or any amendment thereof or
supplement thereto, or resulting from or based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, which untrue
statement, alleged untrue statement, omission or alleged omission is made
therein (i) in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any such Holder specifically for
use in connection with the preparation thereof or (ii) because of such Holder's
failure to advise the Company in writing that any assumption described in
Section 1303(a) (10) is incorrect.
(e) In order to receive Capital Securities on any Exchange Date
for a Security, the Holder of the Security to be exchanged shall surrender such
Security (with, if the Company or Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing), to the Exchange Agent.
(f) Securities of any series to be exchanged shall be deemed to
have been exchanged on the Exchange Date therefor in accordance with the
provisions of this Article and the terms of the Securities of such series, and
at such time the rights of the Holders of such Securities as Holders shall
cease (subject to the provisions of Section 201 and 301) and the Person or
Persons entitled to receive Capital Securities issuable upon such exchange
shall be treated for all purposes as the record holder or holders of such
Capital Securities at such time. As promptly as practicable on or after each
Exchange Date, the Company shall issue and shall deliver to the Exchange Agent
a certificate or certificates for the amount of Capital Securities issuable
upon such exchange, together with payment in lieu of any fraction of a Capital
Security as provided in Section 1302.
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SECTION 1305. Deposit of Exchange Price.
At least 90 days prior to any Exchange Date the Company will appoint
an Exchange Agent and on any Exchange Date for Securities of any series which
may be exchanged the Company shall deposit with the Exchange Agent (or, if the
Company is acting as Exchange Agent, segregate and hold in trust as provided in
Section 1003) Capital Securities and an amount of money which together are
sufficient to pay the Exchange Price of, and accrued interest on, all the
Securities of such series or portions thereof which are to be exchanged on the
Exchange Date.
SECTION 1306. Securities Due on Exchange Date; Securities
Exchanged in Part.
The Securities of any series to be exchanged shall become due and
payable on the Exchange Date for such Securities at the Exchange Price therein
specified, and from and after such date (unless the Company shall default in
the payment of the Exchange Price and accrued interest) Securities of such
series, or the portion thereof, to be exchanged shall cease to bear interest.
Upon surrender of any Security of such series for exchange, such Security shall
be paid by the company at the Exchange Price, together with accrued interest to
the Exchange Date; provided, however, that if such Exchange Date is an Interest
Payment Date, the interest payable on such date shall be paid to the Holder of
Securities of such series according to the terms of the Securities of such
series and the provisions of Section 307.
If any Security of any series for which the notice specified in
Section 1303(a) is duly given shall not be so paid or exchanged upon surrender
thereof for exchange in accordance with Section 1306, the principal shall,
until paid, bear interest from such Exchange Date at the rate or rates
prescribed therefor in such Security.
Any Security which is to be exchanged only in part shall be
surrendered to the Exchange Agent (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing) and the Company shall
execute, the Trustee shall authenticate and there shall be delivered to the
Holder of such Security without service charge a new Security or Securities of
the same series, of any authorized denomination as requested by such Holder in
an aggregate principal amount equal to and in exchange for the unexchanged
portion of principal of the Security so surrendered.
SECTION 1307. Form of Capital Security Election Form.
The form of Capital Security Election Form shall be substantially as
follows with such additions, deletions or changes thereto as may be approved by
the Company:
"CAPITAL SECURITY ELECTION FORM
To: [Insert Name and Address of any Exchange Agent]
The undersigned Holder of (insert title of Security]
("Securities") of United Virginia Bankshares Incorporated hereby
elects to receive on the Exchange Date determined pursuant to the
Indenture, dated as of February 1, 1985 ("Indenture"),
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between United Virginia Bankshares Incorporated and Chemical Bank,
Trustee, and referred to in the notice of exchange delivered to the
undersigned with this Capital Security Election Form, Capital
Securities (as defined in the Indenture) registered in the name of
such Holder of Securities of United Virginia Bankshares Incorporated
with a Market Value (as defined in the Indenture) equal to the
principal amount of the Securities being exchanged which are
registered in the name of the undersigned Holder. Unless this Capital
Security Election Form is received by any Exchange Agent named above
at the address shown above on or prior to 19 , the Holder will be
deemed to have elected to participate in the sale of the Holder's
Capital Securities in the Secondary Offering and will receive cash on
the Exchange Date in an amount equal to the principal amount of all
Securities being exchanged owned by the Holder. All terms used herein
and not otherwise defined herein shall have the meanings specified in
the Indenture.
Dated
-------------------------- --------------------------
Name of Holder
SECTION 1308. Covenants of the Company.
(a) The Company agrees that all Capital Securities issued in
exchange for Securities will upon issuance be duly and validly issued and, if
applicable, fully paid and nonassessable. If any Capital Securities required to
be exchanged for Securities hereunder require registration with or approval of
any governmental authority under any Federal or State law, or any national
securities exchange, before such Capital Securities may be issued, the Company
shall use its best efforts to cause such Capital Securities to be duly
registered or approved, as the case may be. The Company will pay any and all
transfer, stamp or similar taxes that may be payable in respect of the issue or
delivery of Capital Securities in exchange for Securities pursuant hereto.
(b) The Company unconditionally undertakes to sell Capital
Securities in each Secondary Offering (and to bear all expenses of each
Secondary Offering, including underwriting discounts and commissions) at the
times and in the manner required by this Indenture unless all Holders of the
Securities of any series to be exchanged have duly elected to receive Capital
Securities on the related Exchange Date.
(c) The Company agrees to indemnify and hold harmless any Holder
for the account of whom Capital Securities are being offered and sold in
connection with any Secondary Offering and any underwriter, agent or other
similar person from and against any and all losses, claims, damages and
liabilities resulting from or based upon any untrue statement or alleged untrue
statement of any material fact contained in any notice of exchange, any
offering memorandum or selling document or registration statement relating to
the Secondary Offering, any preliminary prospectus or prospectus contained
therein, or any amendment thereof or supplement thereto, or resulting from or
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading or resulting from the Company's failure to comply with Section
1308(a); provided, however, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon any such untrue statement, alleged untrue statement, omission
or alleged omission made therein , (i) in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any such
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Holder specifically for use in connection with the preparation thereof or (ii)
because of such Holder's failure to advise the Company in writing that any
assumption described in Section 1303(a)(10) is incorrect. In connection with
any Secondary Offering, the Company agrees to obtain usual and appropriate
indemnification of any Holder for the account of whom Capital Securities are
being offered and sold in any Secondary Offering from any underwriter, agent or
other similar person.
SECTION 1309. Revocation of Obligation to Exchange Capital
Securities for Securities.
The Company's obligation to exchange Capital Securities for Securities
of any series as provided in Section 1301 is absolute and unconditional;
provided, however, that such obligation may be revoked at the option of the
Company at any time on not less than 60 days' prior notice given in the manner
provided in Section 1303(b) to the Holders of Securities of such series, the
Trustee and the Exchange Agent, if the Company shall determine that the
Securities of such series do not constitute primary capital of the Company
under applicable regulations of its Primary Federal Regulator or if the
Securities of such series shall cease being treated as primary capital of the
Company by its Primary Federal Regulator or if approval of its Primary Federal
Regulator is obtained for such revocation and, in each case, shall furnish the
Trustee with an Opinion of Counsel to such effect.
In the event such obligation is revoked,
(a) the Company will pay the percentage of the principal amount
established in the terms of the Securities of such series in cash from any
source on the Stated Maturity thereof, and
(b) the Company may, at any time when pursuant to their terms such
Securities are redeemable, on not less than 30 nor more than 60 days' prior
notice, redeem the Securities of such series, in whole or in part, for cash
from any source at the percentage of the principal amount established in the
terms of the Securities of such series, plus accrued interest to the Redemption
Date.
SECTION 1310. Optional Securities Fund.
(a) (1) With respect to Securities of any series which provide
that the Securities of such series are exchangeable for Capital Securities, the
Company may elect to create and establish a segregated fund (the "Optional
Securities Fund") with the Trustee into which funds may at any time be
deposited by the Company to the extent and under the provisions set forth in
Section 1402 as if the Optional Securities Fund, were a Securities Fund to be
used to pay the principal of the Securities of such series. The Optional
Securities Fund shall be governed by the terms of Securities of such series and
(except as otherwise specified as contemplated by Section 301) this Section.
(2) Notwithstanding any provision to the contrary contained in
this Indenture or in the Securities of any series, neither funds deposited in
an Optional Securities Fund, nor any other property from time to time held in
an Optional Securities Fund, shall be deemed to be, for any purpose, property
of the Holders of the Securities or trust funds, and an Optional Securities
Fund shall not constitute security for the payment of the Securities.
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(b) In lieu of, or in addition to, any exchange of Capital
Securities for Securities of any series which may be made in accordance with
the provisions of this Article, the Company may elect to redeem the Securities
of such series, in whole or in part, in accordance with Article Eleven of this
Indenture and the terms of the Securities of such series by paying the
principal of such Securities with funds deposited in the Optional Securities
Fund for such series at a price equal to the percentage of the principal amount
established in the terms of the Securities of such series on the Redemption
Date of the Securities to be so redeemed and (except if such Redemption Date
shall be an Interest Payment Date) accrued interest on such Securities. If such
Redemption Date is an Interest Payment Date, the interest payable on such date
shall be paid to the Holder of Securities of such Series according to the terms
of the Securities of such series and the provisions of Section 307.
(c) Funds held in the Optional Securities Fund shall be invested
and reinvested by the Trustee in accordance with the provisions of Section 1404
as if the Optional Securities fund were a Securities Fund.
(d) Funds held in the Optional Securities Fund shall be repaid to
the Company in accordance with the provisions of Section 1405 as if the
Optional Securities Fund were a Securities Fund.
(e) In the event that Securities of a series are to be redeemed
from the Optional Securities Fund, the Trustee shall pay to any Paying Agent
funds in the Optional Securities Fund for the payment of the principal of
Securities of such series in accordance with the provisions of Section 1406 as
if the Optional Securities Fund were a Securities Fund.
SECTION 1311. Provision in Case of Consolidation, Merger or
Transfer of Assets.
In case of any consolidation of the Company with, or merger of the
Company into, any other corporation (other than a consolidation or merger in
which the Company is the continuing corporation), or in case of any conveyance
or transfer of the properties and assets of the Company substantially as an
entirety, the corporation formed by such consolidation or the corporation into
which the Company shall have been merged or the corporation which shall have
acquired such assets of the Company, as the case may be, shall execute and
deliver to the Trustee a supplemental indenture providing that the Holder of
each Security then Outstanding shall have the right thereafter to receive
securities of such successor on the Exchange Date for such Security with a
Market Value equal to the principal amount of such Security. The above
provisions of this Section shall similarly apply to successive consolidations,
mergers, conveyances or transfers.
SECTION 1312. Responsibility of Trustee.
The Trustee shall not at any time be under any duty or responsibility
to any Holder of Securities of any series to be exchanged to determine the
Market Value of any Capital Securities delivered in exchange for Securities of
such series and may rely on and shall be entitled to receive prior to any
Exchange Date for Securities of such series an Officers' Certificate of the
Company as to the Market Value of the Capital Securities being exchanged for
the Securities of such series and the amount of Capital Securities being
exchanged for each $1,000 principal
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amount of Securities of such series and that such Capital Securities qualify as
Capital Securities under the definition thereof contained in this Indenture.
The Trustee shall not be accountable with respect to the validity or value (or
the kind or amount) of any Capital Securities which may at any time be issued
or delivered in exchange for any Security; and the Trustee does not make any
representation with respect thereto. The Trustee shall not be responsible for
any failure of the Company to issue, transfer or deliver any Capital Securities
or Capital Security certificates or other securities or property upon the
surrender of any Security for the purpose of exchange or to comply with any of
the covenants of the Company contained in this Article.
ARTICLE FOURTEEN
SECURITIES FUNDS
SECTION 1401. Creation of a Securities Fund.
When specified in a Board Resolution, Officers' Certificate or
supplemental indenture pursuant to Sections 201 and 301 for the Securities of
any series, the Company will create and establish a segregated fund (a
"Securities Fund") with the Trustee into which funds shall be deposited by the
Company as provided in Section 1402 for the Securities of such series.
Notwithstanding any provision to the contrary contained in this Indenture or in
the Securities of any series, neither funds deposited in a Securities Fund, nor
any other property from time to time held in a Securities Fund, shall be deemed
to be, for any purpose, property of the Holders of the Securities or trust
funds, and a Securities Fund shall not constitute security for the payment of
the Securities.
SECTION 1402. Deposits into a Securities Fund.
Amounts in any Securities Fund will consist solely of (i) the net
proceeds from the sale of Capital Securities for cash ("Cash Proceeds") from
time to time, (ii) funds not exceeding the market value, as determined by the
Company, of Capital Securities sold from time to time in exchange for other
property, less the expenses to effect any such exchanges ("Exchange Proceeds")
and (iii) other funds which the regulations of the Primary Federal Regulator
then permit to be deposited in the Securities Fund, in each case which the
Company shall from time to time elect to deposit with the Trustee for deposit
into such Securities Fund. Any amount deposited by the Company with the Trustee
in any Securities Fund shall be accompanied by an Officers' Certificate stating
that (a) such amount is being deposited for the Securities of the series
identified in such Officers' Certificate and not for any other Securities and
(b) such amount, together with all amounts theretofore deposited into such
Securities Fund, do not exceed the sum of the aggregate Cash Proceeds, Exchange
Proceeds and any amounts deposited pursuant to Clause (iii) of the foregoing
sentence after the date of initial issuance of the Securities of the applicable
series. All amounts received by the Trustee which are accompanied by an
Officers' Certificate to the foregoing effect (and no other amounts) shall be
deposited by the Trustee into such Securities Fund.
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SECTION 1403. Covenant of the Company to Sell or Cause to be sold
Capital Securities and Deposit Proceeds.
The Company hereby covenants and agrees with regard to the Securities
of any series for which a Securities Fund is required to be maintained that (i)
by the Interest Payment Date which occurs on or next preceding the date when
one-third of the period from the date of issuance of the Securities of such
series to their Stated Maturity has elapsed, it will have sold Capital
Securities, either for cash or in exchange for other property, in a sufficient
amount so that the aggregate of the Cash Proceeds, Exchange Proceeds and other
funds eligible for deposit pursuant to Section 1402 will equal at least
one-third of the original aggregate principal amount of the Securities of such
series (or such lesser amount as the Primary Federal Regulator may permit from
time to time), and will have deposited funds equivalent to such amount into the
Securities Fund established with regard to such series, (ii) by the Interest
Payment Date which occurs on or next preceding the date when two-thirds of the
period from the date of issuance of the Securities of such series to their
Stated Maturity has elapsed, it will have sold Capital Securities, either for
cash or in exchange for other property, in a sufficient amount so that the
aggregate of the Cash Proceeds, Exchange Proceeds and other funds eligible for
deposit pursuant to Section 1402 will equal at least two-thirds of the original
aggregate principal amount of the Securities of such series (or such lesser
amount as the Primary Federal regulator may permit from time to time) and will
have deposited funds equivalent to such amount into such Securities Fund, (iii)
by 60 days prior to the Stated Maturity of the Securities of such series, it
will have sold Capital Securities, either for cash or in exchange for other
property, in a sufficient. amount so that the aggregate of the Cash Proceeds,
Exchange Proceeds and other funds eligible for deposit pursuant to Section 1402
will equal not less than the original aggregate principal amount of the
Securities of such series (or such lesser amount as the Primary Federal
Regulator may permit from time to time) and will have deposited funds
equivalent to such amount into such Securities Fund; and (iv) by 10 days prior
to the Stated Maturity of the Securities of such series, if the aggregate
amount of funds in such Securities Fund is not sufficient to pay all of the
principal of (and premium, if any) on the Securities of such series coming due,
it will have sold Capital Securities in a sufficient amount so that the
aggregate of the Cash Proceeds, the Exchange Proceeds and other funds eligible
for deposit pursuant to Section 1402 will equal not less than the amount
necessary in order to provide sufficient funds for such payment and will have
deposited additional funds equivalent to such amount into such Securities Fund;
provided, however, that such covenant and agreement of the Company shall be
cancelled, and any amounts theretofore paid into any such Securities Fund will,
upon Company Request, be repaid to it, (x) in the event that the Company shall
determine that the indebtedness represented by the Securities of such series in
excess of amounts theretofore deposited into such Securities Fund does not
constitute primary capital of the Company under applicable regulations of its
Primary Federal Regulator or if such indebtedness shall cease being treated as
primary capital of the Company by its Primary Federal Regulator or if approval
of its Primary Federal Regulator is obtained for such revocation and, in each
case, the Company shall furnish the Trustee with an Opinion of Counsel to such
effect, or (y) if the Company shall have exchanged or redeemed such Securities
pursuant to the terms of the Securities of such series.
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SECTION 1404. Investment of Moneys in a Securities Fund.
Moneys held in a Securities Fund shall be invested and reinvested by
the Trustee in specified Qualifying Investments, and such investments and
reinvestments shall be liquidated or disposed of, all at the direction of the
Company, each such direction to be in a written instrument (or orally in which
case the Company shall promptly confirm such directions in a written
instrument) signed by an authorized officer of the Company. All such
investments shall be held by or under the control of the Trustee and shall be
deemed at all times to be a part of such Securities Fund. All interest or
discount earned on such investments and any profit realized therefrom shall be
promptly paid to the Company and will not be deemed to be part of such
Securities Fund. The Company shall not direct the Trustee to make any
investments or reinvestments other than those permitted by law and this
Indenture. In making, disposing of or liquidating any such investments and
reinvestments the Trustee may rely on directions delivered to it pursuant to
this Section, and the Trustee shall be relieved of all liability with respect
to making, disposing of or liquidating such investments and reinvestments in
accordance with such directions and shall not be responsible for any losses
incurred in connection with such investments or reinvestments or the
disposition or liquidation thereof.
SECTION 1405. Repayment to the Company from a Securities Fund.
In the event that the Company shall have redeemed any of the
Securities of any series for which a Securities Fund is required to be
maintained other than out of the Securities Fund, there shall forthwith be
repaid by the Trustee to the Company from the Securities Fund for the
Securities of such series an amount of funds not in excess of the principal
amount of Securities so redeemed. Any amounts remaining in such Securities Fund
after redemption of all the Securities of such series or after payment in full
of the principal of and interest on all the Securities of such series (or
provision for the payment thereof as provided in Article Four of this
Indenture) and of the fees, charges and expenses of the Trustee shall be repaid
to the Company. Prior to any repayment by the Trustee to the Company of amounts
from a Securities Fund as provided in this Section, the Trustee shall have been
furnished with a Company Order requesting repayment of a specified amount from
such Securities Fund and an Officers' Certificate certifying that the
conditions precedent to any such repayment have been satisfied and, in the case
of a repayment based upon the redemption of Securities pursuant to the terms of
the Securities of such series, certifying as to the principal amount of the
Securities so redeemed.
SECTION 1406. Payment to Paying Agent from a Securities Fund.
On the Business Day next preceding the Stated Maturity of the
Securities of a series for which a Securities Fund is required to be maintained
or any date fixed for redemption of such Securities, the Trustee shall, upon
Company Order, pay to the Paying Agent in a Place of Payment such amount as is
available in the Securities Fund for the Securities of such series and
necessary to pay the principal of (and premium, if any) on Securities becoming
due on such date. Subject to the provisions of Article Fifteen and of the last
sentence of Section 1401, upon declaration of acceleration upon the occurrence
of an Event of Default, the Trustee shall apply such amount as is available in
the Securities Fund and necessary to pay the principal of (and premium if any)
and interest on Securities which have become due and payable.
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ARTICLE FIFTEEN
SUBORDINATION OF SECURITIES
SECTION 1501. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees that anything in this Indenture or
the Securities of any series to the contrary notwithstanding, the indebtedness
evidenced by the Securities of each series is subordinate and junior in right
of payment to all Senior Indebtedness to the extent provided herein, and each
Holder of Securities of each series, by his acceptance thereof, likewise
covenants and agrees to the subordination herein provided and shall be bound by
the provisions hereof. Senior Indebtedness shall continue to be Senior
Indebtedness and entitled to the benefits of these subordination provisions
irrespective of any amendment, modification or waiver of any term of the Senior
Indebtedness or extension or renewal of the Senior Indebtedness.
In the event that the Company shall default in the payment of any
principal of (or premium, if any) or interest on any Senior Indebtedness when
the same becomes due and payable, whether at maturity or at a date fixed for
prepayment or by declaration of acceleration or otherwise, then, upon written
notice of such default to the Company by the holders of Senior Indebtedness or
any trustee therefor, unless and until such default shall have been cured or
waived or shall have ceased to exist, no direct or indirect payment (in cash,
property, securities, by set-off or otherwise) shall be made or agreed to be
made on account of the principal of (or premium, if any) or interest on any of
the Securities, or in respect of any redemption, retirement, purchase or other
acquisition of any of the Securities or by exchange for Capital Securities.
In the event of
(a) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding relating
to the Company, its creditors or its property,
(b) any proceeding for the liquidation, dissolution or other
winding up of the Company, voluntary or involuntary, whether or not involving
insolvency or bankruptcy proceedings,
(c) any assignment by the Company for the benefit of creditors, or
(d) any other marshalling of the assets of the Company,
all Senior Indebtedness (including any interest thereon accruing after the
commencement of any such proceedings) shall first be paid in full before any
payment or distribution, whether in cash, securities or other property, shall
be made to any Holder of any of the Securities on account thereof. Any payment
or distribution, whether in cash, securities or other property (other than
securities of the Company or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in these subordination provisions with respect to the
indebtedness evidenced by the Securities, to the payment of all Senior
Indebtedness at the time outstanding and to any securities issued in respect
thereof under any such plan of reorganization or readjustment), which would
otherwise (but for these subordination provisions) be payable or deliverable in
respect of the Securities of any
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series shall be paid or delivered directly to the holders of Senior
Indebtedness in accordance with the priorities then existing among such holders
until all Senior Indebtedness (including any interest thereon accruing after
the commencement of any such proceedings) shall have been paid in full. In the
event of any such proceeding, after payment in full of all sums owing with
respect to Senior Indebtedness, the Holders of the Securities, together with
the holders of any obligations of the Company ranking on a parity with the
Securities, shall be entitled to be paid from the remaining assets of the
Company the amounts at the time due and owing on account of unpaid principal of
(and premium, if any) and interest on the Securities and such other obligations
before any payment or other distribution, whether in cash, property or
otherwise, shall be made on account of any capital stock or any obligations of
the Company ranking junior to the Securities and such other obligations.
In the event that, notwithstanding the foregoing, any payment or
distribution of any character, whether in cash, securities or other property
(other than securities of the Company or any other corporation provided for by
a plan of reorganization or readjustment the payment of which is subordinate,
at least to the extent provided in these subordination provisions with respect
to the indebtedness evidenced by the Securities, to the payment of all Senior
Indebtedness at the time outstanding and to any securities issued in respect
thereof under any such plan of reorganization or readjustment), or any security
shall be received by the Trustee or any Holder in contravention of any of the
terms hereof, such payment or distribution or security shall be received in
trust for the benefit of, and shall be paid over or delivered and transferred
to, the holders of the Senior Indebtedness at the time outstanding in
accordance with the priorities then existing among such holders for application
to the payment of all Senior Indebtedness remaining unpaid to the extent
necessary to pay all such Senior Indebtedness in full. In the event of the
failure of the Trustee or any Holder to endorse or assign any such payment,
distribution or security, each holder of Senior Indebtedness is hereby
irrevocably authorized to endorse or assign the same.
No present or future holder of any Senior Indebtedness shall be
prejudiced in the right to enforce subordination of the indebtedness evidenced
by the Securities by any act or failure to act on the part of the Company.
Nothing contained herein shall impair, as between the Company and the Holders
of Securities of each series, the obligation of the Company to pay to such
Holders the principal of (and premium, if any) and interest on such Securities
or prevent the Trustee or the Holder from exercising all rights, powers and
remedies otherwise permitted by applicable law or hereunder upon a Default or
Event of Default hereunder, all subject to the rights of the holders of the
Senior Indebtedness to receive cash, securities or other property otherwise
payable or deliverable to the Holders.
Senior Indebtedness shall not be deemed to have been paid in full
unless the holders thereof shall have received cash, securities or other
property equal to the amount of such Senior Indebtedness then outstanding. Upon
the payment in full of all Senior Indebtedness, the Holders of Securities of
each series shall be subrogated to all rights of any holders of Senior
Indebtedness to receive any further payments or distributions applicable to the
Senior Indebtedness until the indebtedness evidenced by the Securities of such
series shall have been paid in full, and such payments or distributions
received by such Holders, by reason of such subrogation, of cash, securities or
other property which otherwise would be paid or distributed to the holders of
Senior
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Indebtedness shall, as between the Company and its creditors other than the
holders of Senior Indebtedness, on the one hand, and such Holders, on the other
hand, be deemed to be a payment by the Company on account of Senior
Indebtedness, and not on account of the Securities of such series.
The provisions of this Section 1501 shall not impair any rights,
interests, remedies or powers of any secured creditor of the Company in respect
of any security interest the creation of which is not prohibited by the
provisions of this Indenture.
The securing of any obligations of the Company, otherwise ranking on a
parity with the Securities or ranking junior to the Securities, shall not be
deemed to prevent such obligations from constituting, respectively, obligations
ranking on a parity with the Securities or ranking junior to the Securities.
SECTION 1502. Trustee and Holders of Securities May Rely on
Certificate of Liquidating Agent; Trustee May Require Further Evidence to
Ownership of Senior Indebtedness; Trustee Not Fiduciary Holders to Senior
Indebtedness.
Upon any payment or distribution of assets of the Company referred to
in this Article Fifteen, the Trustee and the Holders shall be entitled to rely
upon an order or decree made by any court of competent jurisdiction in which
such dissolution or winding upon liquidation or reorganization or arrangement
proceedings are pending or upon a certificate of the trustee in bankruptcy,
receiver, assignee for the benefit of creditors or other Person making such
payment or distribution, delivered to the Trustee or to the Holders, for the
purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
Fifteen. In the absence of any such bankruptcy trustee, receiver, assignee or
other Person, the Trustee shall be entitled to rely upon a written notice by a
Person representing himself to be a holder of Senior Indebtedness (or a trustee
or representative on behalf of such holder) as evidence that such Person is a
holder of such Senior Indebtedness (or is such a trustee or representative). In
the event that the Trustee determines, in good faith, that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payments or distributions pursuant to this
Article Fifteen, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, as to the extent to which such Person is entitled to
participate in such payment or distribution, and as to other facts pertinent to
the rights of such Person under this Article Fifteen, 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.
The Trustee, however, shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness.
SECTION 1503. Payment Permitted If No Default.
Nothing contained in this Article Fifteen or elsewhere in this
Indenture, or in any of the Securities, shall prevent (a) the Company at any
time, except during the pendency of any dissolution, winding up, liquidation or
reorganization proceedings referred to in, or under the
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conditions described in, Section 1501, from making payments of the principal of
(or premium, if any) or interest on the Securities or delivering Capital
Securities in exchange for Securities on the Exchange Date, or (b) the
application by the Trustee or any Paying Agent of any moneys deposited with it
hereunder to payments of the principal of (or premium, if any) or interest on
the Securities or the delivery by any Exchange Agent of Capital Securities in
exchange for Securities on the Exchange Date, if, at the time of such deposit
or exchange, the Trustee, such Paying Agent or Exchange Agent, as the case may
be, did not have the written notice provided for in Section 1504 of any event
prohibiting the making of such deposit or exchange, or if, at the time of such
deposit or exchange (whether or not in trust) by the Company with the Trustee,
Paying Agent (other than the Company) or Exchange Agent such payment or
exchange would not have been prohibited by the provisions of this Article, and
the Trustee, any Paying Agent or Exchange Agent shall not be affected by any
notice to the contrary received by it on or after such date.
SECTION 1504. Trustee and Exchange Agent Not Charged with
Knowledge of Prohibition.
Anything in this Article Fifteen or in elsewhere in this Indenture
contained to the contrary notwithstanding, the Trustee and any Exchange Agent
shall not at any time be charged with knowledge of the existence of any facts
which would prohibit the making of any payment of money to or by the Trustee or
the delivery of Capital Securities by any Exchange Agent and shall be entitled
conclusively to assume that no such facts exist and that no event specified in
Section 1501 has happened, until the Trustee or Exchange Agent, as the case may
be, shall have received an Officers' Certificate to that effect or notice in
writing to that effect signed by or on behalf of the holder or holders, or
their representatives, of Senior Indebtedness who shall have been certified by
the Company or otherwise established to the reasonable satisfaction of the
Trustee or Exchange Agent, as the case may be, to be such holder or holders or
representatives or from any trustee under any indenture pursuant such Senior
Indebtedness shall be outstanding; provided, however, that, if prior to the
third Business Day preceding the date upon which by the terms hereof any money
becomes payable or Capital Securities are required to be delivered for any
purpose (including, without limitation, the payment of either the principal of
or interest on any Security), or in the event of the execution of an instrument
pursuant to Section 401 acknowledging satisfaction and discharge of this
Indenture, then if prior to the second Business Day preceding the date of such
execution, the Trustee, any Paying Agent or Exchange Agent shall not have
received with respect to such money or Capital Securities the Officers'
Certificate or notice provided for in this Section 1504, then, anything herein
contained to the contrary notwithstanding, the Trustee, such Paying Agent or
Exchange Agent shall have full power and authority to receive such money and
Capital Securities and apply the same to the purpose for which they were
received and shall not be affected by the notice to the contrary which may be
received by it on or after such date. The Company shall give prompt written
notice to the Trustee, to the Paying Agent and to the Exchange Agent of any
facts which would prohibit the payment of money or the delivery of Capital
Securities to or by the Trustee, any Paying Agent or Exchange Agent.
SECTION 1505. Trustee to Effectuate Subordination.
Each Holder of Securities by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination
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as between such Holder and holders of Senior Indebtedness as provided in this
Article and appoints the Trustee its attorney-in-fact for any and all such
purposes.
SECTION 1506. Rights of Trustee as Holder of Senior Indebtedness.
The Trustee shall be entitled to all the rights set forth in this
Article with respect to any Senior Indebtedness which may at the time be held
by it, to the same extent as any other holder of Senior indebtedness; provided,
however, that nothing in this Indenture shall deprive the Trustee of any of its
rights as such holder; and provided, further, that nothing in this Article
shall apply to claims of, or payments to the Trustee under or pursuant to
Section 607.
SECTION 1507. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context shall otherwise
require) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if the Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
however, that Sections 1504 and 1506 shall not apply to the Company or any
Affiliate of the Company if the Company or such Affiliate acts as Paying Agent.
SECTION 1508. Subordination Rights Not Impaired by Acts or
Omissions of the Company or Holders of Senior Indebtedness.
No right of any present or future holsters of any Senior Indebtedness
to enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof which any such holder may have
or be otherwise charged with. The holders of Senior Indebtedness may, at any
time or from time to time and in their absolute discretion, change the manner,
place or terms of payment, change or extend the time of payment of, or renew or
alter, any such Senior Indebtedness, or amend or supplement any instrument
pursuant to which any such Senior Indebtedness is issued or by which it may be
secured, or release any security therefor, or exercise or refrain from
exercising any other of their rights under the Senior Indebtedness, including,
without limitation, the waiver of default thereunder, all without notice to or
assent from the Holders of the Securities or the Trustee and without affecting
the obligations of the Company, the Trustee or the Holders of the Securities
under this Article.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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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.
[Seal] UNITED VIRGINIA BANKSHARES
INCORPORATED
By: /s/ C. Xxxxxxx Xxxxx
--------------------------------------
Senior Vice President
and Treasurer
Attest:
/s/ Xxxxx X. Xxxxx, Xx.
-----------------------------------
Senior Vice President
and Secretary
[seal] CHEMICAL BANK, Trustee
By: /s/ Xxxxxxx Xxxxx
--------------------------------------
Vice President
Attest:
Xxxxx Xxxxx
-----------------------------------
Trust Officer
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