Exhibit 4.4
AMENDED AND RESTATED
TRUST AGREEMENT
among
CITY HOLDING COMPANY
as Depositor,
THE CHASE MANHATTAN BANK
as Property Trustee,
and
CHASE MANHATTAN BANK DELAWARE
as Delaware Trustee
Dated as of _________, 1998
---------------------------
CITY HOLDING CAPITAL TRUST II
---------------------------
CITY HOLDING CAPITAL TRUST II
Certain Sections of this Trust Agreement relating, to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Act
Section Trust Agreement Section
------------------- -----------------------
Section 310 (a)(1)...........................8.7
(a)(2)...........................8.7
(a)(3)...........................8.9
(a)(4)...........................2.7(a)(ii)
(b)..............................8.8, 10.10(b)
Section 311 (a)..............................8.13, 10.10(b)
(b)..............................8.13, 10.10(b)
Section 312 (a)..............................10.10(b)
(b)..............................10.10(b), (f)
(c)..............................5.7
Section 313 (a)..............................8.15(a)
(a)(4)...........................10.10(c)
(b)..............................8.15(c), 10.10(c)
(c)..............................10.8, 10.10(c)
(d)..............................10.10(c)
Section 314 (a)..............................8.16, 10.10(d)
(b)..............................Not Applicable
(c)(1)...........................8.17, 10.10(d), (e)
(c)(2)...........................8.17, 10.10(d), (e)
(c)(3)...........................8.17, 10.10(d), (e)
(e)..............................8.17, 10.10(e)
Section 315 (a)..............................8.1(d)
(b)..............................8.2
(c)..............................8.1(c)
(d)..............................8.1(d)
(e)..............................Not Applicable
Section 316 (a)..............................Not Applicable
(a)(1)(A)........................Not Applicable
(a)(1)(B)........................Not Applicable
(a)(2)...........................Not Applicable
(b)..............................5.13
(c)..............................6.7
Section 317 (a)(1)...........................Not Applicable
(a)(2)...........................8.14
(b)..............................5.10
Section 318 (a)..............................10.10(a)
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Trust Agreement.
TABLE OF CONTENTS
ARTICLE I....................................................................6
DEFINED TERMS................................................................6
Section 1.1. Definitions...............................................6
ARTICLE II..................................................................16
CONTINUATION OF THE ISSUER TRUST............................................16
Section 2.1. Name.....................................................16
Section 2.2. Office of the Delaware Trustee; Principal Place of
Business...............................................16
Section 2.3. Initial Contribution of Trust Property;
Organizational Expenses................................16
Section 2.4. Issuance of the Capital Securities.......................17
Section 2.5. Issuance of the Common Securities; Subscription and
Purchase of Junior Subordinated Debentures.............17
Section 2.6. Declaration of Trust.....................................18
Section 2.7. Authorization to Enter into Certain Transactions.........18
Section 2.8. Assets of Trust..........................................22
Section 2.9. Title to Trust Property..................................22
ARTICLE III.................................................................22
PAYMENT ACCOUNT.............................................................22
Section 3.1. Payment Account..........................................22
ARTICLE IV..................................................................23
DISTRIBUTION; REDEMPTION....................................................23
Section 4.1. Distributions............................................23
Section 4.2. Redemption...............................................24
Section 4.3. Subordination of Common Securities.......................27
Section 4.4. Payment Procedures.......................................28
Section 4.5. Tax Returns and Reports..................................28
Section 4.6. Payment of Taxes, Duties, Etc. of the Issuer Trust.......28
Section 4.7. Payments under Indenture or Pursuant to Direct Actions...28
Section 4.8. Liability of the Holder of Common Securities.............29
ARTICLE V...................................................................29
TRUST SECURITIES CERTIFICATES...............................................29
Section 5.1. Initial Ownership........................................29
Section 5.2. The Trust Securities Certificates........................29
Section 5.3. Execution and Delivery of Trust Securities Certificates..30
Section 5.4. Global Capital Securities................................30
Section 5.5. Registration of Transfer and Exchange Generally;
Certain Transfers and Exchanges; Capital
Securities Certificates.................................31
Section 5.6. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates.................................33
Section 5.7. Persons Deemed Holders...................................33
Section 5.8. Access to List of Holders'Names and Addresses............33
Section 5.9. Maintenance of Office or Agency..........................34
Section 5.10. Appointment of Paying Agent.............................34
Section 5.11. Ownership of Common Securities by Depositor.............34
Section 5.12. Notices to Clearing Agency..............................35
Section 5.13. Rights of Holders.......................................35
ARTICLE VI..................................................................38
ACTS OF HOLDERS; MEETINGS; VOTING...........................................38
Section 6.1. Limitations on Holder's Voting Rights....................38
Section 6.2. Notice of Meetings.......................................39
Section 6.3. Meetings of Holders......................................39
Section 6.4. Voting Rights............................................39
Section 6.5. Proxies, etc.............................................40
Section 6.6. Holder Action by Written Consent.........................40
Section 6.7. Record Date for Voting and Other Purposes................40
Section 6.8. Acts of Holders..........................................40
Section 6.9. Inspection of Records....................................41
ARTICLE VII.................................................................42
REPRESENTATIONS AND WARRANTIES..............................................42
Section 7.1. Representations and Warranties of the Property
Trustee and the Delaware Trustee.......................42
Section 7.2. Representations and Warranties of Depositor..............43
ARTICLE VIII................................................................43
THE ISSUER TRUSTEES; THE ADMINISTRATORS.....................................43
Section 8.1. Certain Duties and Responsibilities......................43
Section 8.2. Events of Default; Waiver................................46
Section 8.2. Certain Notices..........................................46
Section 8.3. Certain Rights of Property Trustee.......................47
Section 8.4. Not Responsible for Recitals or Issuance of Securities...49
Section 8.5. May Hold Securities......................................49
Section 8.6. Compensation; Indemnity; Fees............................49
Section 8.7. Corporate Property Trustee Required; Eligibility
of Trustees and Administrators.........................50
Section 8.8. Conflicting Interests....................................51
Section 8.9. Co-Trustees and Separate Trustee.........................51
Section 8.10. Resignation and Removal; Appointment of Successor.......53
Section 8.11. Acceptance of Appointment by Successor..................54
Section 8.12. Merger, Conversion, Consolidation or Succession
to Business............................................55
Section 8.13. Preferential Collection of Claims Against
Depositor or Issuer Trust..............................55
Section 8.14. Trustee May File Proofs of Claim........................55
Section 8.15. Reports by Property Trustee.............................56
Section 8.16. Reports to the Property Trustee.........................56
Section 8.17. Evidence of Compliance with Conditions Precedent........56
Section 8.18. Number of Issuer Trustees...............................57
Section 8.19. Delegation of Power.....................................57
Section 8.20. Appointment of Administrators...........................57
Section 8.22. Delaware Trustee........................................58
ARTICLE IX..................................................................59
DISSOLUTION, LIQUIDATION AND MERGER.........................................59
Section 9.1. Dissolution Upon Expiration Date.........................59
Section 9.2. Early Dissolution........................................59
Section 9.3. Termination..............................................59
Section 9.4. Liquidation..............................................60
Section 9.5. Mergers, Consolidations, Amalgamations or
Replacements of the Issuer Trust........................61
ARTICLE X...................................................................62
MISCELLANEOUS PROVISIONS....................................................62
Section 10.1. Limitations of Rights of Holders........................62
Section 10.2. Amendment...............................................62
Section 10.3. Separability............................................64
Section 10.4. Governing Law...........................................64
Section 10.5. Payments Due on Non-Business Day........................65
Section 10.6. Successors..............................................65
Section 10.7. Headings................................................65
Section 10.8. Reports, Notices and Demands............................65
Section 10.9. Agreement Not to Petition...............................66
Section 10.10. Trust Indenture Act; Conflict with Trust
Indenture Act........................................66
Section 10.11. Acceptance of Terms of Trust Agreement, Guarantee
and Indenture........................................68
Exhibit A Certificate of Trust
Exhibit B [Intentionally Omitted]
Exhibit C Form of Common Securities Certificate
Exhibit D Form of Capital Securities Certificate
AGREEMENT
THIS AMENDED AND RESTATED TRUST AGREEMENT, dated as of ___________,
1998, by and among (i) City Holding Company, a West Virginia corporation
(including any successors or assigns, the "Depositor"), (ii) The Chase Manhattan
Bank, a New York banking corporation, as property trustee (in such capacity, the
"Property Trustee" and, in its separate corporate capacity and not in its
capacity as Property Trustee, the "Bank"), (iii) Chase Manhattan Bank Delaware,
a Delaware banking corporation, as Delaware trustee (the "Delaware Trustee")
(the Property Trustee and the Delaware Trustee are referred to collectively
herein as the "Issuer Trustees"), and (iv) the several Holders, as hereinafter
defined.
WITNESSETH
WHEREAS, the Depositor and the Delaware Trustee have heretofore duly
declared and established a business trust pursuant to the Delaware Business
Trust Act by entering into a certain Trust Agreement, dated as of September 17,
1998 (the "Original Trust Agreement"), and by the execution and filing by the
Delaware Trustee with the Secretary of State of the State of Delaware of the
Certificate of Trust, filed on September 17, 1998 (the "Certificate of Trust"),
attached as Exhibit A; and
WHEREAS, the Depositor and the Delaware Trustee desire to amend and
restate the Original Trust Agreement in its entirety as set forth herein to
provide for, among other things, (i) the issuance of the Common Securities by
the Issuer Trust to the Depositor, (ii) the issuance and sale of the Capital
Securities by the Issuer Trust pursuant to the Underwriting Agreement, (iii) the
acquisition by the Issuer Trust from the Depositor of all of the right, title
and interest in the Junior Subordinated Debentures, (iv) the appointment of the
Administrators and (v) the addition of the Property Trustee as a party to this
Trust Agreement.
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Holders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees, intending to be legally
bound, as follows:
ARTICLE I
DEFINED TERMS
Section 1.1. Definitions.
For all purposes of this Trust Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) The terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the
singular;
(b) All other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) The words "include," "includes" and "including" shall be deemed
to be followed by the phrase "without limitation";
(d) All accounting terms used but not defined herein have the
meanings assigned to them in accordance with United States
generally accepted accounting principles as in effect at the
time of computation;
(e) Unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as
the case may be, of this Trust Agreement;
(f) The words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not
to any particular Article, Section or other subdivision; and
(g) All references to the date the Capital Securities were
originally issued shall refer to the date the _____% Capital
Securities were originally issued.
"Act" has the meaning specified in Section 6.8.
"Additional Amounts" means, with respect to Trust Securities of a
given Liquidation Amount and/or a given period, the amount of Additional
Interest (as defined in the Indenture) paid by the Depositor on a Like Amount of
Junior Subordinated Debentures for such period.
"Additional Sums" has the meaning specified in Section 10.6 of the
Indenture.
"Administrators" means each Person appointed in accordance with
Section 8.20 solely in such Person's capacity as Administrator of the Issuer
Trust continued hereunder and not in such Person's individual capacity, or any
successor Administrator appointed as herein provided; with the initial
Administrators being ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇.
"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.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Capital Security or beneficial interest therein,
the rules and procedures of the Depository for such Capital Security, in each
case to the extent applicable to such transaction and as in effect from time to
time.
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in
the premises judging such Person a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjudication or composition of or in respect of
such Person under any applicable federal or State bankruptcy,
insolvency, reorganization or other similar law, or appointing a
receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of such Person or of any substantial part of
its property or ordering the winding-up or liquidation of its
affairs, and the continuance of any such decree or order
unstayed and in effect for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated
a bankrupt or insolvent, or the consent by it to the institution
of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable federal or State
bankruptcy, insolvency, reorganization or other similar law, or
the consent by it to the filing of any such petition or to the
appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or similar official) of such Person or of any
substantial part of its property or the making by it of an
assignment for the benefit of creditors, or the admission by it
in writing of its inability to pay its debts generally as they
become due and its willingness to be adjudicated a bankrupt, or
the taking of corporate action by such Person in furtherance of
any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Board of Directors" means the board of directors of the Depositor or
the Executive Committee of the board of directors of the Depositor (or any other
committee of the board of directors of the Depositor performing similar
functions) or a committee designated by the board of directors of the Depositor
(or any such committee), comprised of two or more members of the board of
directors of the Depositor or officers of the Depositor, or both.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly adopted
by the Depositor's Board of Directors, or such committee of the Board of
Directors or officers of the Depositor to which authority to act on behalf of
the Board of Directors has been delegated, and to be in full force and effect on
the date of such certification, and delivered to the Issuer Trustees.
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a
day on which banking institutions in the City of New York, New York, or the City
of Charleston, West Virginia are authorized or required by law or executive
order to remain closed or (c) a day on which the Property Trustee's Corporate
Trust Office or the Delaware Trustee's corporate trust office or the corporate
trust office of the Debenture Trustee is closed for business.
"Capital Securities Certificate" means a certificate evidencing
ownership of Capital Securities, substantially in the form attached as Exhibit
D.
"Capital Security" means a preferred undivided beneficial interest in
the assets of the Issuer Trust, having a Liquidation Amount of $25.00 and having
the rights provided therefor in this Trust Agreement, including the right to
receive Distributions and a Liquidation Distribution as provided herein.
"Capital Treatment Event" means, in respect of the Issuer Trust, the
reasonable determination by the Depositor that, as a result of the occurrence of
any amendment to, or change (including any announced prospective change) in, the
laws (or any rules or regulations thereunder) of the United States or any
political subdivision thereof or therein, or as a result of any official or
administrative pronouncement or action or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
such pronouncement, action or decision is announced on or after the date of the
issuance of the Capital Securities of the Issuer Trust, there is more than an
insubstantial risk that the Depositor will not be entitled to treat an amount
equal to the Liquidation Amount of such Capital Securities as "Tier 1 Capital"
(or the then equivalent thereof) for purposes of the risk-based capital adequacy
guidelines of the Board of Governors of the Federal Reserve System, as then in
effect and applicable to the Depositor.
"Cede" means Cede & Co.
"Certificate of Trust" has the meaning specified in the preamble
to this Trust Agreement.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act. The Depository shall be the
initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means the Closing Time, which date is also the date of
execution and delivery of this Trust Agreement.
"Closing Time" means the First Closing Date, as that term is used
throughout the Underwriting Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, as amended, 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 Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit C.
"Common Securities Purchase Agreement" means the Common Securities
Purchase Agreement dated as of ___________, 1998 between the Issuer Trust and
the Depositor, as the same may be amended from time to time.
"Common Security" means an undivided beneficial interest in the
assets of the Issuer Trust, having a Liquidation Amount of $25.00 and having the
rights provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Corporate Trust Office" means the principal corporate trust office
of the Property Trustee located in the City of New York which at the time of the
execution of this Trust Agreement is located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"Debenture Event of Default" means an "Event of Default" as defined
in the Indenture.
"Debentures Purchase Agreement" means the Junior Subordinated
Deferrable Interest Debentures Purchase Agreement dated as of ____________, 1998
between the Depositor and the Issuer Trust, as the same may be amended from time
to time.
"Debenture Redemption Date" means, with respect to any Junior
Subordinated Debentures to be redeemed under the Junior Subordinated Indenture,
the date fixed for redemption of such Debentures under the Indenture.
"Debenture Trustee" means The Chase Manhattan Bank, a New York
banking corporation and any successor.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. ss. 3801, et seq., as it may be amended from time to
time.
"Delaware Trustee" means the corporation identified as the "Delaware
Trustee" in the preamble to this Trust Agreement solely in its capacity as
Delaware Trustee of the Issuer Trust continued hereunder and not in its
individual capacity, or its successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"Depository" means The Depository Trust Company or any successor
thereto.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.1.
"Early Termination Event" has the meaning specified in Section 9.2.
"Event of Default" means any one of the following events (whatever
the reason for such Event of Default and whether it shall 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):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Issuer Trust in the payment of any Distribution
when it becomes due and payable, and continuation of such
default for a period of 30 days; or
(c) default by the Issuer Trust in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect,
of any covenant or warranty of the Issuer Trustees in this Trust
Agreement (other than a covenant or warranty a default in the
performance of which or the breach of which is dealt with in
clause (b) or (c) above) and continuation of such default or
breach for a period of 60 days after there has been given, by
registered or certified mail, to the Issuer Trustees and the
Depositor by the Holders of at least 25% in aggregate
Liquidation Amount of the Outstanding Capital Securities, a
written notice specifying such default or breach and requiring
it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(e) the occurrence of any Bankruptcy Event with respect to the
Property Trustee or all or substantially all of its property if
a successor Property Trustee has not been appointed within a
period of 90 days thereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and any successor statute thereto, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Global Capital Securities Certificate" means a Capital Securities
Certificate evidencing ownership of Global Capital Securities.
"Global Capital Security" means a Capital Security, the ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 5.4.
"Guarantee" means the Guarantee Agreement executed and delivered by
the Depositor and The Chase Manhattan Bank, as trustee, contemporaneously with
the execution and delivery of this Trust Agreement, for the benefit of the
Holders of the Capital Securities, as amended from time to time.
"Holder" means a Person in whose name a Trust Security or Trust
Securities is registered in the Securities Register; any such Person shall be
deemed to be a beneficial owner within the meaning of the Delaware Business
Trust Act.
"Indenture" means the Junior Subordinated Indenture, dated as of
March 31, 1998, between the Depositor and the Debenture Trustee (as amended or
supplemented from time to time) relating to the issuance of the Junior
Subordinated Debentures.
"Investment Company Act" means the Investment Company Act of 1940, as
amended.
"Investment Company Event" means the receipt by the Issuer Trust of
an Opinion of Counsel experienced in such matters to the effect that, as a
result of the occurrence of a change in law or regulation or a written change
(including any announced prospective change) in interpretation or application of
law or regulation by any legislative body, court, governmental agency or
regulatory authority, there is more than an insubstantial risk that the Issuer
Trust is or will be considered an "investment company" that is required to be
registered under the Investment Company Act, which change or prospective change
becomes effective or would become effective, as the case may be, on or after the
date of the issuance of the Capital Securities.
"Issuer Trust" means City Holding Capital Trust II.
"Issuer Trustees" means, collectively, the Property Trustee and the
Delaware Trustee.
"Junior Subordinated Debentures" means the aggregate principal amount
of the Depositor's _____% Junior Subordinated Deferrable Interest Debentures,
Series B due ______, 2028, issued pursuant to the Indenture.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to that portion
of the principal amount of Junior Subordinated Debentures to be
contemporaneously redeemed in accordance with the Indenture, allocated to the
Common Securities and to the Capital Securities pro rata based upon the relative
Liquidation Amounts of such classes and (b) with respect to a distribution of
Junior Subordinated Debentures to Holders of Trust Securities in connection with
a dissolution or liquidation of the Issuer Trust, Junior Subordinated Debentures
having a principal amount equal to the Liquidation Amount of the Trust
Securities of the Holder to whom such Junior Subordinated Debentures are
distributed.
"Liquidation Amount" means the stated amount of $25.00 per Trust
Security.
"Liquidation Date" means the date on which Junior Subordinated
Debentures are to be distributed to Holders of Trust Securities in connection
with a dissolution and liquidation of the Issuer Trust pursuant to Section 9.4.
"Liquidation Distribution" has the meaning specified in Section
9.4(d).
"Majority in Liquidation Amount of the Capital Securities" or
"Majority in Liquidation Amount of the Common Securities" means, except as
provided by the Trust Indenture Act, Capital Securities or Common Securities, as
the case may be, representing more than 50% of the aggregate Liquidation Amount
of all then Outstanding Capital Securities or Common Securities, as the case may
be.
"Officers' Certificate" means a certificate signed by the Chief
Executive Officer, President or an Executive Vice President, a Senior Vice
President or Vice President, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary, of the Depositor, and delivered to the
party provided herein. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Trust Agreement
(other than pursuant to Section 8.17) shall include:
(a) a statement by each officer signing the Officers' Certificate
that such officer has read the covenant or condition and the
definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by such officer in rendering the
Officers' Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to
enable such officer to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for or an employee of the Depositor or any Affiliate of the Depositor or
any Issuer Trustee.
"Original Trust Agreement" has the meaning specified in the preamble
to this Trust Agreement.
"Outstanding," with respect to Trust Securities, means, as of the
date of determination, all Trust Securities theretofore executed and delivered
under this Trust Agreement, except:
(a) Trust Securities theretofore canceled by the Property Trustee or
delivered to the Property Trustee for cancellation;
(b) Trust Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the
Property Trustee or any Paying Agent for the Holders of such
Capital Securities, provided that if such Trust Securities are
to be redeemed, notice of such redemption has been duly given
pursuant to this Trust Agreement; and
(c) Trust Securities which have been paid, or in exchange for, or in
lieu of which, other Trust Securities have been executed and
delivered pursuant to Sections 5.4, 5.5 and 5.6;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Capital Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, Capital
Securities owned by the Depositor, any Issuer Trustee, any Administrator or any
Affiliate of the Depositor, shall be disregarded and deemed not to be
Outstanding, except that (a) in determining whether any Issuer Trustee or any
Administrator shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Capital Securities
that such Issuer Trustee or such Administrator, as the case may be, knows to be
so owned shall be so disregarded and (b) the foregoing shall not apply at any
time when all of the Outstanding Capital Securities are owned by the Depositor,
one or more of the Issuer Trustees, one or more of the Administrators and/or any
such Affiliate. Capital Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Administrators the pledgee's right so to act with respect to
such Capital Securities and that the pledgee is not the Depositor or any
Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of Global
Capital Securities as reflected in the records of the Clearing Agency or, if a
Clearing Agency Participant is not the Owner, then as reflected in the records
of a Person maintaining an account with such Clearing Agency (directly or
indirectly), in accordance with the rules of such Clearing Agency.
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.10 and shall initially be the Property Trustee.
"Payment Account" means a segregated non-interest-bearing corporate
trust account maintained with the Property Trustee in its corporate trust
department for the benefit of the Holders in which all amounts paid in respect
of the Junior Subordinated Debentures will be held and from which the Property
Trustee, through the Paying Agent, shall make payments to the Holders in
accordance with Sections 4.1 and 4.2.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, company,
limited liability company, trust, unincorporated organization or government or
any agency or political subdivision thereof, or any other entity of whatever
nature.
"Property Trustee" means the Person identified as the "Property
Trustee" in the preamble to this Trust Agreement solely in its capacity as
Property Trustee of the Issuer Trust continued hereunder and not in its
individual capacity, or its successor in interest in such capacity, or any
successor property trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Debenture Redemption Date and the stated maturity
of the Junior Subordinated Debentures shall be a Redemption Date for a Like
Amount of Trust Securities, including but not limited to any date of redemption
pursuant to the occurrence of any Special Event.
"Redemption Price" means a price equal to 100% of the Liquidation
Amount of the Trust Security to be redeemed, together with accumulated
Distributions to but excluding the date fixed for redemption and the related
amount of the premium, if any, paid by the Depositor upon the concurrent
redemption of the Junior Subordinated Debentures.
"Relevant Trustee" has the meaning specified in Section 8.10.
"Responsible Officer" when used with respect to the Property Trustee
means any officer assigned to the Corporate Trust Office, including any managing
director, vice president, assistant vice president, assistant treasurer,
assistant secretary, trust officer, senior trust officer or any other officer of
the Property Trustee customarily performing functions similar to those performed
by any of the above designated officers and having direct responsibility for the
administration of the Indenture, and also, with respect to a particular matter,
any other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933, as amended, and
any successor statute thereto, in each case as amended from time to time.
"Senior Indebtedness" has the meaning specified in the Indenture.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.5.
"Special Event" means any Tax Event, Capital Treatment Event or
Investment Company Event.
"Successor Capital Securities Certificate" of any particular Capital
Securities Certificate means every Capital Securities Certificate issued after,
and evidencing all or a portion of the same beneficial interest in the Issuer
Trust as that evidenced by, such particular Capital Securities Certificate; and,
for the purposes of this definition, any Capital Securities Certificate executed
and delivered under Section 5.6 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Capital Securities Certificate shall be deemed to
evidence the same beneficial interest in the Issuer Trust as the mutilated,
destroyed, lost or stolen Capital Securities Certificate.
"Successor Capital Security" has the meaning specified in Section
9.5.
"Tax Event" means the receipt by the Issuer Trust of an Opinion of
Counsel experienced in such matters to the effect that, as a result of any
amendment to, or change (including any announced prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, or as a result of any
official or administrative pronouncement or action or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or which pronouncement, action or decision is announced on or after
the date of issuance of the Capital Securities (including, without limitation,
any of the foregoing arising with respect to, or resulting from, any proceeding
or other action commencing on or before such date), there is more than an
insubstantial risk that (i) the Issuer Trust is, or will be within 90 days of
the delivery of such Opinion of Counsel, subject to United States federal income
tax with respect to income received or accrued on the Junior Subordinated
Debentures, (ii) interest payable by the Depositor on the Junior Subordinated
Debentures is not, or within 90 days of the delivery of such Opinion of Counsel
will not be, deductible by the Depositor, in whole or in part, for United States
federal income tax purposes, or (iii) the Issuer Trust is, or will be within 90
days of the delivery of such Opinion of Counsel, subject to more than a de
minimis amount of other taxes, duties or other governmental charges.
"Trust Agreement" means this Amended and Restated Trust Agreement, as
the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including (i) all exhibits hereto, and (ii) for
all purposes of this Amended and Restated Trust Agreement and any such
modification, amendment or supplement, the provisions of the Trust Indenture Act
that are deemed to be a part of and govern this Amended and Restated Trust
Agreement and any modification, amendment or supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 or any
successor statute, in each case as amended from time to time.
"Trust Property" means (a) the Junior Subordinated Debentures, (b)
any cash on deposit in, or owing to, the Payment Account, (c) all proceeds and
rights in respect of the foregoing and (d) any other property and assets for the
time being held or deemed to be held by the Property Trustee pursuant to the
trusts of this Trust Agreement.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Capital Securities Certificates.
"Trust Security" means any one of the Common Securities or the
Capital Securities.
"Underwriters" has the meaning specified in the Underwriting
Agreement.
"Underwriting Agreement" means the Underwriting Agreement, dated as
of ______________, 1998, among the Issuer Trust, the Depositor and the
Underwriters, as the same may be amended from time to time.
ARTICLE II
CONTINUATION OF THE ISSUER TRUST
Section 2.1. Name.
The Issuer Trust continued hereby shall be known as "City Holding
Capital Trust II", as such name may be modified from time to time by the
Administrators following written notice to the Holders of Trust Securities and
the Issuer Trustees, in which name the Administrators and the Issuer Trustees
may engage in the transactions contemplated hereby, make and execute contracts
and other instruments on behalf of the Issuer Trust and ▇▇▇ and be sued.
Section 2.2. Office of the Delaware Trustee; Principal Place of
Business.
The address of the Delaware Trustee in the State of Delaware is Chase
Manhattan Bank Delaware, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇,
Attention: Corporate Trustee Administration Department, or such other address in
the State of Delaware as the Delaware Trustee may designate by written notice to
the Holders and the Depositor. The principal executive office of the Issuer
Trust is in care of City Holding Company, ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
Section 2.3. Initial Contribution of Trust Property; Organizational
Expenses.
The Property Trustee acknowledges receipt in trust from the Depositor
in connection with this Trust Agreement of the sum of $25.00, which constitutes
the initial Trust Property. The Depositor shall pay all organizational expenses
of the Issuer Trust as they arise or shall, upon request of any Issuer Trustee,
promptly reimburse such Issuer Trustee for any such expenses paid by such Issuer
Trustee. The Depositor shall make no claim upon the Trust Property for the
payment of such expenses.
Section 2.4. Issuance of the Capital Securities.
The Depositor and the Issuer Trust executed and delivered the
Underwriting Agreement as of _________, 1998, pursuant to the Original Trust
Agreement. Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrator, on behalf of the Issuer Trust, shall by manual or
facsimile signature execute in accordance with Section 5.3 and the Property
Trustee shall authenticate in accordance with Section 5.3 and deliver to the
Underwriters, Capital Securities Certificates, registered in the names requested
by the Underwriters, in an aggregate amount of $__________ Capital Securities
having an aggregate Liquidation Amount of $____________, against receipt of the
aggregate purchase price of such Capital Securities of $____________, by the
Property Trustee.
If the Underwriters exercise their option to purchase all or any
portion of an additional _________ Capital Securities pursuant to the terms of
the Underwriting Agreement, then an Administrator, on behalf of the Issuer
Trust, shall by manual or facsimile signature execute in accordance with Section
5.3 and the Property Trustee shall authenticate in accordance with Section 5.3
and deliver to the Underwriters, additional Capital Securities Certificates,
registered in the names requested by the Underwriters, in an aggregate amount of
up to _________ additional Capital Securities having an aggregate Liquidation
Amount of up to $_________, against receipt of the aggregate purchase price of
such additional Capital Securities of up to $__________, (plus accumulated
Distributions) by the Property Trustee.
The certificates of authentication to be executed by the Property
Trustee shall be substantially in the forms as set forth on Exhibits C and D
attached hereto.
Section 2.5. Issuance of the Common Securities; Subscription and
Purchase of Junior Subordinated Debentures.
Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrator, on behalf of the Issuer Trust, shall by manual or
facsimile signature execute or cause to be executed in accordance with Section
5.3 and the Property Trustee shall authenticate in accordance with Section 5.3
and shall deliver to the Depositor Common Securities Certificates, registered in
the name of the Depositor, in an aggregate amount of ______ Common Securities
having an aggregate Liquidation Amount of $________ against receipt of the
aggregate purchase price of such Common Securities of $_________ by the Property
Trustee. Contemporaneously therewith, an Administrator, on behalf of the Issuer
Trust, shall subscribe for and purchase from the Depositor the Junior
Subordinated Debentures, registered in the name of the Property Trustee and
having an aggregate principal amount equal to $__________, and, in satisfaction
of the purchase price for such Junior Subordinated Debentures, the Property
Trustee, on behalf of the Issuer Trust, shall deliver to the Depositor the sum
of $__________, (being the sum of the amounts delivered to the Property Trustee
pursuant to (i) the second sentence of Section 2.4, and (ii) the first sentence
of this Section 2.5) and receive on behalf of the Issuer Trust the Junior
Subordinated Debentures.
If the Underwriters exercise their option to purchase additional
Capital Securities pursuant to the terms of the Underwriting Agreement, then an
Administrator, on behalf of the Issuer Trust, shall by manual or facsimile
signature execute in accordance with Section 5.3 and the Property Trustee shall
authenticate and deliver to the Depositor additional Common Securities
Certificates, registered in the name of the Depositor, in an aggregate amount of
up to ______ additional Common Securities having an aggregate Liquidation Amount
of up to $_______ against receipt of the aggregate purchase price of such
additional Common Securities of up to $________ (plus accumulated Distributions)
by the Property Trustee. Contemporaneously therewith, an Administrator, on
behalf of the Issuer Trust, shall subscribe for and purchase from the Depositor
the Junior Subordinated Debentures, registered in the name of the Property
Trustee and having an aggregate principal amount of up to $_________, and, in
satisfaction of the purchase price for such Junior Subordinated Debentures, the
Property Trustee, on behalf of the Issuer Trust, shall deliver to the Depositor
an aggregate amount equal to the sum of the amounts delivered to the Property
Trustee pursuant to (i) the third sentence of Section 2.4, and (ii) the third
sentence of this Section 2.5.
Section 2.6. Declaration of Trust.
The exclusive purposes and functions of the Issuer Trust are to (a)
issue and sell Trust Securities and use the proceeds from such sale to acquire
the Junior Subordinated Debentures, and (b) engage in only those other
activities necessary, convenient or incidental thereto. The Depositor hereby
appoints the Issuer Trustees as trustees of the Issuer Trust, to have all the
rights, powers and duties to the extent set forth herein, and the Issuer
Trustees hereby accept such appointment. The Property Trustee hereby declares
that it will hold the Trust Property in trust upon and subject to the conditions
set forth herein for the benefit of the Issuer Trust and the Holders. The
Depositor hereby appoints the Administrators, with such Administrators having
all rights, powers and duties set forth herein with respect to accomplishing the
purposes of the Issuer Trust, and the Administrators hereby accept such
appointment; provided, however, that it is the intent of the parties hereto that
such Administrators shall not be trustees or, to the fullest extent permitted by
law, fiduciaries with respect to the Issuer Trust and this Trust Agreement shall
be construed in a manner consistent with such intent. The Delaware Trustee shall
not be entitled to exercise any powers, nor shall the Delaware Trustee have any
of the duties and responsibilities, of the Property Trustee or the
Administrators set forth herein. The Delaware Trustee shall be one of the
trustees of the Issuer Trust for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Delaware Business Trust Act and for taking
such actions as are required to be taken by a Delaware trustee under the
Delaware Business Trust Act.
Section 2.7. Authorization to Enter into Certain Transactions..
(a) The Issuer Trustees and the Administrators shall conduct the
affairs of the Issuer Trust in accordance with the terms of this
Trust Agreement. Subject to the limitations set forth in
paragraph (b) of this Section and in accordance with the
following provisions (i) and (ii), the Issuer Trustees and the
Administrators shall act as follows:
(i) Each Administrator, acting jointly or singly, shall:
(1) comply with the Underwriting Agreement regarding
the issuance and sale of the Trust Securities;
(2) assist in compliance with the Securities Act,
applicable state securities or blue sky laws,
and the Trust Indenture Act;
(3) assist in the listing of the Capital Securities
upon such securities exchange or exchanges as
shall be determined by the Depositor, with the
registration of the Capital Securities under the
Exchange Act, if required, and the preparation
and filing of all periodic and other reports and
other documents pursuant to the foregoing;
(4) execute the Trust Securities on behalf of the
Issuer Trust in accordance with this Trust
Agreement;
(5) execute and deliver an application for a
taxpayer identification number for the Issuer
Trust;
(6) assist in the filing with the Commission, at
such time as determined by the Depositor, any
registration statement under the Securities Act,
including any amendments thereto;
(7) unless otherwise required by the Trust Indenture
Act, execute on behalf of the Issuer Trust any
documents that the Administrators have the power
to execute pursuant to this Trust Agreement,
including without limitation, the Debentures
Purchase Agreement and the Common Securities
Purchase Agreement and send notices (other than
notices of default) and other information
regarding the Trust Securities and the Junior
Subordinated Debentures to the Holders in
accordance with this Trust Agreement; and
(8) take any action incidental to the foregoing as
necessary or advisable to give effect to the
terms of this Trust Agreement.
(ii) The Property Trustee shall have the power and authority
to act on behalf of the Issuer Trust with respect to the
following matters:
(1) the establishment of the Payment Account;
(2) the receipt of the Junior Subordinated
Debentures;
(3) the receipt and collection of interest,
principal and any other payments made in respect
of the Junior Subordinated Debentures in the
Payment Account;
(4) the distribution, through the Paying Agent, of
amounts owed to the Holders in respect of the
Trust Securities;
(5) the exercise of all of the rights, powers and
privileges of a holder of the Junior
Subordinated Debentures (subject to the terms of
this Trust Agreement);
(6) the sending of notices of default and other
information regarding the Trust Securities and
the Junior Subordinated Debentures to the
Holders in accordance with this Trust Agreement;
(7) the distribution of the Trust Property in
accordance with the terms of this Trust
Agreement;
(8) to the extent provided in this Trust Agreement,
the winding-up of the affairs of and liquidation
of the Issuer Trust and the preparation,
execution and filing of the certificate of
cancellation with the Secretary of State of the
State of Delaware; and
(9) after an Event of Default (other than under
paragraph (b), (c), (d), or (e) of the
definition of such term if such Event of Default
is by or with respect to the Property Trustee),
comply with the provisions of this Trust
Agreement and take any action to give effect to
the terms of this Trust Agreement and protect
and conserve the Trust Property for the benefit
of the Holders (without consideration of the
effect of any such action on any particular
Holder);
provided, however, that nothing in this Section 2.7(a)(ii) shall
require the Property Trustee to take any action that is not
otherwise required in this Trust Agreement.
(iii) the Property Trustee shall have none of the duties,
liabilities, powers or the authority of the
Administrators as set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Issuer
Trust (or the Issuer Trustees or Administrators acting on behalf
of the Issuer Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or
contemplated hereby. In particular, neither the Issuer Trustees
nor the Administrators shall (i) acquire any investments or
engage in any activities not authorized by this Trust Agreement,
(ii) sell, assign, transfer, exchange, mortgage, pledge, set-off
or otherwise dispose of any of the Trust Property or interests
therein, including to Holders, except as expressly provided
herein, (iii) take any action that would cause the Issuer Trust
to become taxable other than as a grantor trust for United
States federal income tax purposes, (iv) incur any indebtedness
for borrowed money or issue any other debt, or (v) take or
consent to any action that would result in the placement of a
Lien on any of the Trust Property. The Property Trustee shall
defend all claims and demands of all Persons at any time
claiming any Lien on any of the Trust Property adverse to the
interest of the Issuer Trust or the Holders in their capacity as
Holders.
(c) In connection with the issue and sale of the Capital Securities,
the Depositor shall have the right and responsibility to assist
the Issuer Trust with respect to, or effect on behalf of the
Issuer Trust, the following (and any actions taken by the
Depositor in furtherance of the following prior to the date of
this Trust Agreement are hereby ratified and confirmed in all
respects):
(i) the preparation, execution and filing with the
Commission of a registration statement on the
appropriate form under the Securities Act with respect
to the Capital Securities;
(ii) the determination of the states in which to take
appropriate action to qualify or register for sale all
or part of the Capital Securities and the determination
of any and all such acts, other than actions that must
be taken by or on behalf of the Issuer Trust, and the
advice to the Administrators of actions they must take
on behalf of the Issuer Trust, and the preparation for
execution and filing of any documents to be executed and
filed by the Issuer Trust or on behalf of the Issuer
Trust, as the Depositor deems necessary or advisable in
order to comply with the applicable laws of any such
States in connection with the sale of the Capital
Securities;
(iii) the negotiation of the terms of, and the execution and
delivery of, the Underwriting Agreement providing for
the sale of the Capital Securities; and
(iv) the taking of any other actions necessary or desirable
to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrators and the Property Trustee are authorized and
directed to conduct the affairs of the Issuer Trust and to
operate the Issuer Trust so that the Issuer Trust will not be
deemed to be an "investment company" required to be registered
under the Investment Company Act, and will not be taxable other
than as a grantor trust for the United States Federal income tax
purposes and so that the Junior Subordinated Debentures will be
treated as indebtedness of the Depositor for United States
Federal income tax purposes. In this connection, the
Administrators, the Property Trustee and the Holders of Common
Securities are authorized to take any action, not inconsistent
with applicable law, the Certificate of Trust or this Trust
Agreement, that the Administrators, Property Trustee and Holders
of Common Securities determine in their discretion to be
necessary or desirable for such purposes, as long as such action
does not adversely affect in any material respect the interests
of the holders of the Outstanding Capital Securities. In no
event shall the Administrators or the Issuer Trustees be liable
to the Issuer Trust or the Holders for any failure to comply
with this Section that results from a change in law or
regulations or in the interpretation thereof. It is understood
that (i) by performing its duties and obligations as are
specifically set forth in this Trust Agreement, the Property
Trustee shall be deemed to have complied with the provisions of
the first sentence of this Section 2.7(d) and (ii) nothing in
this Section 2.7(d) shall require the Property Trustee to take
any actions other that those specifically required by this
Trustee Agreement to be taken by it.
Section 2.8. Assets of Trust.
The assets of the Issuer Trust shall consist solely of the Trust Property.
Section 2.9. Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee for the benefit of the Issuer Trust and the Holders in
accordance with this Trust Agreement.
ARTICLE III
PAYMENT ACCOUNT
Section 3.1. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and its
agents shall have exclusive control and sole right of withdrawal
with respect to the Payment Account for the purpose of making
deposits in and withdrawals from the Payment Account in
accordance with this Trust Agreement. All monies and other
property deposited or held from time to time in the Payment
Account shall be held by the Property Trustee in the Payment
Account for the exclusive benefit of the Holders and for
distribution as herein provided, including (and subject to) any
priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal of or interest
on, and any other payments or proceeds with respect to, the
Junior Subordinated Debentures. Amounts held in the Payment
Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV
DISTRIBUTION; REDEMPTION
Section 4.1. Distributions.
(a) The Trust Securities represent undivided beneficial interests in
the Trust Property, and Distributions (including of Additional
Amounts) will be made on the Trust Securities at the rate and on
the dates that payments of interest (including of Additional
Interest, as defined in the Indenture) are made on the Junior
Subordinated Debentures. Accordingly:
(i) Distributions on the Trust Securities shall be
cumulative and will accumulate whether or not there are
funds of the Issuer Trust available for the payment of
Distributions. Distributions shall accumulate from
__________, 1998, and, except in the event (and to the
extent) that the Depositor exercises its right to defer
the payment of interest on the Junior Subordinated
Debentures pursuant to the Indenture, shall be payable
quarterly in arrears on _______________ of each year,
commencing on ____________, 1998. If any date on which a
Distribution is otherwise payable on the Trust
Securities is not a Business Day, then the payment of
such Distribution shall be made on the next succeeding
day that is a Business Day (without any additional
Distributions or other payment in respect of any such
delay), with the same force and effect as if made on the
date on which such payment was originally payable (each
date on which distributions are payable in accordance
with this Section 4.1(a), a "Distribution Date").
(ii) The Trust Securities shall be entitled to Distributions
payable at a rate of ______% per annum of the
Liquidation Amount of the Trust Securities. The amount
of Distributions payable for any period less than a full
Distribution period shall be computed on the basis of a
360-day year of twelve 30-day months and the actual
number of days elapsed in a partial month in a period.
Distributions payable for each full Distribution period
will be computed by dividing the rate per annum by four.
The amount of Distributions payable for any period shall
include any Additional Amounts in respect of such
period.
(iii) So long as no Debenture Event of Default has occurred
and is continuing, the Depositor has the right under the
Indenture to defer the payment of interest on the Junior
Subordinated Debentures at any time and from time to
time for a period not exceeding 20 consecutive quarterly
periods (an "Extension Period"), during which Extension
Periods the Depositor shall have the right to make
partial payments of interest on any Interest Payment
Date (as defined in the Indenture) and at the end of
which the Depositor shall pay all interest then accrued
and unpaid, provided that no Extension Period may extend
beyond ___________, 2028 or end on a day other than an
Interest Payment Date. As a consequence of any such
deferral, quarterly Distributions on the Trust
Securities by the Issuer Trust will also be deferred
(and the amount of Distributions to which Holders of the
Trust Securities are entitled will accumulate additional
Distributions thereon at a rate of _____% per annum,
compounded quarterly from the relevant payment date for
such Distributions, computed on the basis of a 360-day
year of twelve 30-day months and the actual days elapsed
in a partial month in such period). Additional
Distributions payable for each full Distribution period
will be computed by dividing the rate per annum by four.
The term "Distributions" as used in Section 4.1 shall
include any such additional Distributions provided
pursuant to this Section 4.1(a)(iii).
(iv) Distributions on the Trust Securities shall be made by
the Property Trustee from the Payment Account and shall
be payable on each Distribution Date only to the extent
that the Issuer Trust has funds then on hand and
available in the Payment Account for the payment of such
Distributions.
(b) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as
they appear on the Securities Register for the Trust Securities
at the close of business on the relevant record date, which
shall be at the close of business on the fifteenth day (whether
or not a Business Day) next preceding the relevant Distribution
Date.
Section 4.2. Redemption.
(a) On each Debenture Redemption Date and on the stated maturity of
the Junior Subordinated Debentures, the Issuer Trust will be
required to redeem a Like Amount of Trust Securities at the
Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee 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
Trust Securities to be redeemed, at such Holder's address
appearing in the Security Register. All notices of redemption
shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number or CUSIP numbers of the Capital
Securities affected;
(iv) if less than all the Outstanding Trust Securities are to
be redeemed, the identification and the total
Liquidation Amount of the particular Trust Securities to
be redeemed;
(v) that on the Redemption Date the Redemption Price will
become due and payable upon each such Trust Security to
be redeemed and that Distributions thereon will cease to
accumulate on and after said date, except as provided in
Section 4.2(d) below; and
(vi) the place or places where Trust Securities are to be
surrendered for the payment of the Redemption Price.
The Issuer Trust in issuing the Trust Securities may use "CUSIP" or
"private placement" numbers (if then generally in use), and, if so, the Property
Trustee shall indicate the "CUSIP" or "private placement" numbers of the Trust
Securities in notices of redemption and related materials as a convenience to
Holders; provided, that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Trust Securities
or as contained in any notice of redemption and related material.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the applicable proceeds
from the contemporaneous redemption of Junior Subordinated
Debentures. Redemptions of the Trust Securities shall be made
and the Redemption Price shall be payable on each Redemption
Date only to the extent that the Issuer Trust has funds then on
hand and available in the Payment Account for the payment of
such Redemption Price.
(d) If the Issuer Trust gives a notice of redemption in respect of
any Capital Securities, then, by 10:00 a.m., New York City time,
on the Redemption Date, the Depositor shall deposit sufficient
funds with the Property Trustee to pay the Redemption Price. If
such deposit has been made, then by 12:00 noon, New York City
time, on the Redemption Date, subject to Section 4.2(c), the
Property Trustee will, with respect to Capital Securities held
in global form, irrevocably deposit with the Clearing Agency for
such Capital Securities, to the extent available therefor, funds
sufficient to pay the applicable Redemption Price and will give
such Clearing Agency irrevocable instructions and authority to
pay the Redemption Price to the Holders of the Capital
Securities. With respect to Capital Securities that are not held
in global form, the Property Trustee, subject to Section 4.2(c),
will irrevocably deposit with the Paying Agent, to the extent
available therefor, funds sufficient to pay the applicable
Redemption Price and will give the Paying Agent irrevocable
instructions and authority to pay the Redemption Price to the
Holders of the Capital Securities upon surrender of their
Capital Securities Certificates. Notwithstanding the foregoing,
Distributions payable on or prior to the Redemption Date for any
Trust Securities called for redemption shall be payable to the
Holders of such Trust Securities as they appear on the
Securities Register for the Trust Securities on the relevant
record dates for the related Distribution Dates. If notice of
redemption shall have been given and funds deposited as
required, then, upon the date of such deposit, all rights of
Holders holding Trust Securities so called for redemption will
cease, except the right of such Holders to receive the
Redemption Price and any Distribution payable in respect of the
Trust Securities on or prior to the Redemption Date, but without
interest, and such Trust Securities will cease to be
Outstanding. In the event that any date on which any applicable
Redemption Price is payable is not a Business Day, then payment
of the applicable Redemption Price payable on such date will be
made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such
delay), except that, if such Business Day falls in the next
calendar year, such payment will be made on the immediately
preceding Business Day, in each case, with the same force and
effect as if made on such date. In the event that payment of the
Redemption Price in respect of any Trust Securities called for
redemption is improperly withheld or refused and not paid either
by the Issuer Trust or by the Depositor pursuant to the
Guarantee, Distributions on such Trust Securities will continue
to accumulate, as set forth in Section 4.1 and in accordance
with the continued accrual of interest on the Junior
Subordinated Debentures, from the Redemption Date originally
established by the Issuer Trust for such Trust Securities to the
date such applicable Redemption Price is actually paid, in which
case the actual payment date will be the date fixed for
redemption for purposes of calculating the applicable Redemption
Price.
(e) Subject to Section 4.3(a), if less than all the Outstanding
Trust Securities are to be redeemed on a Redemption Date, then
the aggregate Liquidation Amount of such Trust Securities to be
redeemed shall be allocated pro rata to the Common Securities
and the Capital Securities based on the relative Liquidation
Amounts of such classes. The amount of premium, if any, paid by
the Depositor upon the redemption of all or any part of the
Junior Subordinated Debentures to be repaid or redeemed on a
Redemption Date shall be allocated to the redemption pro rata of
the Capital Securities and the Common Securities. The particular
Capital Securities to be redeemed shall be selected by the
Property Trustee by such method (including, without limitation,
on a pro rata basis based on their respective Liquidation
Amounts or by lot) as the Property Trustee shall deem fair and
appropriate, which may provide for the selection for redemption
of portions (equal to $25.00 or integral multiples thereof) of
the Liquidation Amount of Capital Securities of a denomination
larger than $25.00, not more than 60 days prior to the
Redemption Date from the Outstanding Capital Securities not
previously called for redemption, or if the Capital Securities
are then held in the form of a Global Capital Security, by the
Clearing Agency in accordance with the customary procedures for
the Clearing Agency. In any such proration, the Property Trustee
shall make such adjustments so that any Capital Security to be
redeemed shall, after such redemption, be in an authorized
denomination. The Property Trustee shall promptly notify the
Securities Registrar in writing of the Capital Securities
selected for redemption and, in the case of any Capital
Securities selected for partial redemption, the Liquidation
Amount thereof to be redeemed. For all purposes of this Trust
Agreement, unless the context otherwise requires, all provisions
relating to the redemption of Capital Securities shall relate,
in the case of any Capital Securities redeemed or to be redeemed
only in part, to the portion of the aggregate Liquidation Amount
of Capital Securities that has been or is to be redeemed.
Section 4.3. Subordination of Common Securities.
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, the Redemption Price of, and the Liquidation
Distribution in respect of, the Trust Securities, as applicable,
shall be made, subject to Section 4.2(e), pro rata among the
Common Securities and the Capital Securities based on the
Liquidation Amount of such Trust Securities; provided, however,
that if on any Distribution Date or Redemption Date any Event of
Default resulting from a Debenture Event of Default in Section
5.1(1) or 5.1(2) of the Indenture shall have occurred and be
continuing, no payment of any Distribution (including any
Additional Amounts) on, Redemption Price of, or Liquidation
Distribution in respect of, any Common Security, and no other
payment on account of the redemption, liquidation or other
acquisition of Common Securities, shall be made unless payment
in full in cash of all accumulated and unpaid Distributions
(including any Additional Amounts) on all Outstanding Capital
Securities for all Distribution periods terminating on or prior
thereto, or, in the case of payment of the Redemption Price, the
full amount of such Redemption Price on all Outstanding Capital
Securities then called for redemption, or in the case of payment
of the Liquidation Distribution, the full amount of such
Liquidation Distribution on all Outstanding Capital Securities,
shall have been made or provided for, and all funds immediately
available to the Property Trustee shall first be applied to the
payment in full in cash of all Distributions (including any
Additional Amounts) on, or the Redemption Price of, or
Liquidation Distribution in respect of, Capital Securities then
due and payable. The existence of an Event of Default does not
entitle the Holders of Capital Securities to accelerate the
maturity thereof.
(b) In the case of the occurrence of any Event of Default resulting
from any Debenture Event of Default, the Holders of the Common
Securities shall be deemed to have waived any right to act with
respect to any such Event of Default under this Trust Agreement
until the effects of all such Events of Default with respect to
the Capital Securities have been cured, waived or otherwise
eliminated. Until all such Events of Default under this Trust
Agreement with respect to the Capital Securities have been so
cured, waived or otherwise eliminated, the Property Trustee
shall act solely on behalf of the Holders of the Capital
Securities and not on behalf of the Holder of the Common
Securities, and only the Holders of the Capital Securities will
have the right to direct the Property Trustee to act on their
behalf.
Section 4.4. Payment Procedures.
Payments of Distributions (including any Additional Amounts) in respect of
the Capital Securities shall be made by check mailed to the address of the
Person entitled thereto as such address shall appear on the Securities Register
or, if the Capital Securities are held by a Clearing Agency, such Distributions
shall be made to the Clearing Agency in immediately available funds, which will
credit the relevant accounts on the applicable Distribution Dates. Payments in
respect of the Common Securities shall be made in such manner as shall be
mutually agreed between the Property Trustee and the Holder of the Common
Securities.
Section 4.5. Tax Returns and Reports.
The Administrators shall prepare (or cause to be prepared), at the
Depositor's expense, and file all United States Federal, state and local tax and
information returns and reports required to be filed by or in respect of the
Issuer Trust. In this regard, the Administrators shall (a) prepare and file (or
cause to be prepared and filed) all Internal Revenue Service forms required to
be filed in respect of the Issuer Trust in each taxable year of the Issuer Trust
and (b) prepare and furnish (or cause to be prepared and furnished) to each
Holder all Internal Revenue Service forms required to be provided by the Issuer
Trust. The Administrators shall provide the Depositor and the Property Trustee
with a copy of all such returns and reports promptly after such filing or
furnishing. The Property Trustee shall comply with United States Federal
withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to Holders under the Trust Securities.
On or before December 15 of each year during which any Capital Securities
are outstanding, the Administrators shall furnish to the Paying Agent such
information as may be reasonably requested by the Property Trustee in order that
the Property Trustee may prepare the information which it is required to report
for such year on Internal Revenue Service Forms 1096 and 1099 pursuant to
Section 6049 of the Code. Such information shall include the amount of original
issue discount includable in income for each outstanding Capital Security during
such year, if any.
Section 4.6. Payment of Taxes, Duties, Etc. of the Issuer Trust.
Upon receipt under the Junior Subordinated Debentures of Additional Sums
and the written direction of any of the Administrators, the Property Trustee
shall promptly pay any taxes, duties or governmental charges of whatsoever
nature (other than withholding taxes) imposed on the Issuer Trust by the United
States or any other taxing authority.
Section 4.7. Payments under Indenture or Pursuant to Direct Actions.
Any amount payable hereunder to any Holder of Capital Securities shall be
reduced by the amount of any corresponding payment such Holder has directly
received pursuant to Section 5.8 of the Indenture or Section 5.13 of this Trust
Agreement.
Section 4.8. Liability of the Holder of Common Securities.
The Holder of Common Securities shall be liable for the debts and
obligations of the Issuer Trust as set forth in Section 6.7 of the Indenture
regarding allocation of expenses.
ARTICLE V
TRUST SECURITIES CERTIFICATES
Section 5.1. Initial Ownership.
Upon the creation of the Issuer Trust and the contribution by the
Depositor pursuant to Section 2.3 and until the issuance of the Trust
Securities, and at any time during which no Trust Securities are Outstanding,
the Depositor shall be the sole beneficial owner of the Issuer Trust.
Section 5.2. The Trust Securities Certificates.
(a) The Capital Securities Certificates shall be issued in fully
registered form in denominations of $25.00 Liquidation Amount or
integral multiples thereof. The Trust Securities Certificates
shall be executed on behalf of the Issuer Trust by manual or
facsimile signature of at least one Administrator. Trust
Securities Certificates bearing the manual or facsimile
signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf
of the Issuer Trust, shall be validly issued and entitled to the
benefits of this Trust Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized
prior to the delivery of such Trust Securities Certificates or
did not hold such offices at the date of delivery of such Trust
Securities Certificates. A transferee of a Trust Securities
Certificate shall become a Holder, and shall be entitled to the
rights and subject to the obligations of a Holder hereunder,
upon due registration of such Trust Securities Certificate in
such transferee's name pursuant to Section 5.5.
(b) Upon their original issuance, Capital Securities Certificates
shall be issued in the form of one or more Global Capital
Securities Certificates registered in the name of Cede as the
Depository's nominee and deposited with or on behalf of the
Depository for credit by the Depository to the respective
accounts of the Owners thereof (or such other accounts as they
may direct). Except as set forth herein, record ownership of the
Global Capital Securities may be transferred, in whole or in
part, only to the Depository, another nominee of Depository or
to a successor of Depository or its nominee.
(c) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a
definitive Common Securities Certificate.
Section 5.3. Execution and Delivery of Trust Securities Certificates.
At the Closing Time, and on the date, if any, on which the Underwriters
exercises its option to purchase additional Capital Securities pursuant to the
terms of the Underwriting Agreement, as applicable, an Administrator shall cause
Trust Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.4 and 2.5, to be executed on behalf of the Issuer Trust and delivered
to the Property Trustee and upon such delivery the Property Trustee shall
authenticate such Trust Securities Certificates and deliver such Trust
Securities Certificates upon the written order of the Trust, executed by an
Administrator thereof, without further corporate action by the Depositor, in
authorized denominations. Only such Trust Securities Certificates as shall bear
thereon a certificate of authentication substantially in the form provided for
herein executed by the Property Trustee by manual signature of an authorized
officer thereof shall be entitled to the benefits of this Trust Agreement or be
valid or obligatory for any purpose.
Section 5.4. Global Capital Securities.
(a) The Global Capital Securities issued under this Trust Agreement
shall be registered in the name of the nominee of the Clearing
Agency and delivered to the Property Trustee as custodian
therefor, and such Global Capital Security shall constitute a
single Capital Security for all purposes of this Trust
Agreement.
(b) Notwithstanding any other provision in this Trust Agreement, the
Global Capital Securities may not be exchanged in whole or in
part for Capital Securities registered, and no transfer of the
Global Capital Securities in whole or in part may be registered,
in the name of any Person other than the Clearing Agency for
such Global Capital Security, Cede, or other nominee thereof
("Definitive Capital Securities") unless (i) such Clearing
Agency advises the Depositor and the Property Trustee in writing
that such Clearing Agency is no longer willing or able to
properly discharge its responsibilities as Clearing Agency with
respect to such Global Capital Security, and the Depositor is
unable to locate a qualified successor, (ii) the Issuer Trust
(by an Administrator) at its option advises the Depository in
writing that it elects to terminate the book-entry system
through the Clearing Agency, or (iii) there shall have occurred
and be continuing an Event of Default. If the Global Capital
Security is to be exchanged for Definitive Capital Securities or
canceled in whole, it shall be surrendered by or on behalf of
the Clearing Agency or its nominee to the Securities Registrar
for exchange or cancellation as provided in this Article V. If
the Global Capital Security is to be exchanged in whole or in
part for Definitive Capital Securities, then either (i) such
Global Capital Security shall be so surrendered for exchange or
cancellation as provided in this Article V or (ii) the
Liquidation Amount thereof shall be reduced by an amount equal
to the portion thereof to be exchanged or canceled, by means of
an appropriate adjustment made on the records of the Security
Registrar, whereupon the Property Trustee shall instruct the
Clearing Agency or its authorized representative to make a
corresponding adjustment to its records. Upon any such surrender
or adjustment of the Global Capital Security by the Clearing
Agency, accompanied by registration instructions, the Property
Trustee shall, subject to this Section 5.4(b) and as otherwise
provided in this Article V, authenticate and deliver any Capital
Securities issuable in exchange for such Global Capital Security
(or any portion thereof) in accordance with the instructions of
the Clearing Agency. The Property Trustee shall not be liable
for any delay in delivery of such instructions and may
conclusively rely on, and shall be fully protected in relying
on, such instructions.
(c) Every Capital Security executed, authenticated and delivered
upon registration of transfer of, or in exchange for or in lieu
of, a Global Capital Security or any portion thereof, whether
pursuant to this Article V or Article IV or otherwise, shall be
authenticated and delivered in the form of, and shall be, a
Global Capital Security, unless such Global Capital Security is
registered in the name of a Person other than the Clearing
Agency for such Global Capital Security or a nominee thereof.
(d) The Clearing Agency or its nominee, as the registered owner of
the Global Capital Security, shall be considered the Holder of
the Capital Securities represented by the Global Capital
Security for all purposes under this Trust Agreement and the
Capital Securities, and owners of beneficial interests in the
Global Capital Security shall hold such interests pursuant to
the Applicable Procedures and, except as otherwise provided
herein, shall not be entitled to have any of the individual
Capital Securities represented by the Global Security registered
in their names, shall not receive nor be entitled to receive
physical delivery of any such Capital Securities in definitive
form and shall not be considered the Holders thereof under this
Trust Agreement. Accordingly, any such owner's beneficial
interest in the Global Capital Security shall be shown only on,
and the transfer of such interest shall be effected only
through, records maintained by the Clearing Agency or its
nominee. Neither the Property Trustee nor the Securities
Registrar shall have any liability in respect of any transfers
effected by the Clearing Agency.
(e) The rights of owners of beneficial interests in the Global
Capital Security shall be exercised only through the Clearing
Agency and shall be limited to those established by law and
agreements between such owners and the Clearing Agency.
Section 5.5. Registration of Transfer and Exchange Generally;
Certain Transfers and Exchanges; Capital Securities Certificates
The Property Trustee shall keep or cause to be kept at its Corporate Trust
Office a register or registers for the purpose of registering Capital Securities
Certificates and transfers and exchanges of Capital Securities Certificates in
which the registrar and transfer agent with respect to the Capital Securities
(the "Securities Registrar"), subject to such reasonable regulations as it may
prescribe, shall provide for the registration of Capital Securities Certificates
and Common Securities Certificates (subject to Section 5.11 in the case of
Common Securities Certificates) and registration of transfers and exchanges of
Capital Securities Certificates as herein provided. Such register is herein
sometimes referred to as the "Securities Register." The Property Trustee is
hereby appointed Securities Registrar for the purpose of registering Capital
Securities and transfers of Capital Securities as herein provided.
Upon surrender for registration of transfer of any Capital Security
Certificate at the offices or agencies of the Property Trustee designated for
that purpose an Administrator shall execute, and the Property Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Capital Securities Certificates of any authorized
denominations of like tenor and aggregate Liquidation Amount and bearing such
restrictive legends as may be required by this Trust Agreement.
At the option of the Holder, Capital Securities Certificates may be
exchanged for other Capital Securities Certificates of any authorized
denominations, of like tenor and aggregate Liquidation Amount and bearing such
restrictive legends as may be required by this Trust Agreement, upon surrender
of the Capital Securities to be exchanged at such office or agency. Whenever any
Capital Securities are so surrendered for exchange, an Administrator shall
execute and the Property Trustee shall authenticate and deliver the Capital
Securities that the Holder making the exchange is entitled to receive.
All Capital Securities Certificates issued upon any transfer or exchange
of Capital Securities shall be the valid obligations of the Issuer Trust,
evidencing the same debt, and entitled to the same benefits under this Trust
Agreement, as the Capital Securities Certificates surrendered upon such transfer
or exchange.
Every Capital Securities Certificate presented or surrendered for transfer
or exchange shall (if so required by the Property Trustee) be duly endorsed, or
be accompanied by a written instrument of transfer in form satisfactory to the
Property Trustee and the Securities Registrar, duly executed by the Holder
thereof or such Holder's attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer or exchange
of Capital Securities, but the Property Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Capital Securities.
Neither the Issuer Trust nor the Property Trustee shall be required,
pursuant to the provisions of this Section, (x) to issue, register the transfer
of or exchange any Capital Security during a period beginning at the opening of
business 15 days before the day of selection for redemption of Capital
Securities pursuant to Article IV and ending at the close of business on the day
of mailing of the notice of redemption, or (y) to register the transfer of or
exchange any Capital Security so selected for redemption in whole or in part,
except, in the case of any such Capital Security to be redeemed in part, any
portion thereof not to be redeemed.
Section 5.6. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates.
If (a) any mutilated Trust Securities Certificate shall be surrendered to
the Securities Registrar, or if the Securities Registrar shall receive evidence
to its satisfaction of the destruction, loss or theft of any Trust Securities
Certificate and (b) there shall be delivered to the Securities Registrar and the
Administrators such security or indemnity as may be required by them to save
each of them harmless, then in the absence of notice that such Trust Securities
Certificate shall have been acquired by a bona fide purchaser, the
Administrators, or any one of them, on behalf of the Issuer Trust shall execute
and make available for delivery, and the Property Trustee shall authenticate, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen Trust
Securities Certificate, a new Trust Securities Certificate of like class, tenor
and denomination. In connection with the issuance of any new Trust Securities
Certificate under this Section, the Administrators or the Securities Registrar
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Trust Securities Certificate issued pursuant to this Section shall constitute
conclusive evidence of an undivided beneficial interest in the assets of the
Issuer Trust corresponding to that evidenced by the lost, stolen or destroyed
Trust Securities Certificate, as if originally issued, whether or not the lost,
stolen or destroyed Trust Securities Certificate shall be found at any time. The
provisions of this Section 5.6 are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement of
mutilated, destroyed, lost or stolen Trust Securities Certificates.
Section 5.7. Persons Deemed Holders.
The Issuer Trustees, the Administrators or the Securities Registrar shall
treat the Person in whose name any Trust Securities are issued as the owner of
such Trust Securities for the purpose of receiving Distributions and for all
other purposes whatsoever (subject to the record date provisions hereof), and
none of the Issuer Trustees, the Administrators nor the Securities Registrar
shall be bound by any notice to the contrary.
Section 5.8. Access to List of Holders' Names and Addresses.
At any time when the Property Trustee is not also acting as the Securities
Registrar, the Depositor shall furnish or cause to be furnished to the Property
Trustee, semiannually not more than 15 days after March 15 and September 15, of
each year beginning with March 15, 1999, and at such other times as the Property
Trustee may request in writing within 30 days after receipt by the Depositor of
any such request, a list, in such form as the Property Trustee may reasonably
require containing all information in the possession or control of the
Depositor, or any Paying Agent or any registrar of the Trust Securities other
than the Property Trustee, as to the names and addresses of the Holders obtained
(in the case of each list other than the first list) since the date as of which
the next previous list was furnished. Any such list may be dated as of a date
not more than fifteen days prior to the time such information is furnished or
caused to be furnished, and need not include information received after such
date. The rights of Holders to communicate with other Holders with respect to
their rights under this Trust Agreement or under the Trust Securities, and the
corresponding obligations and rights of the Property Trustee, shall be as
provided in the Trust Indenture Act. Each Holder and each Owner shall be deemed
to have agreed not to hold the Depositor, the Property Trustee, or the
Administrators accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
Section 5.9. Maintenance of Office or Agency.
The Property Trustee shall designate, with the consent of the
Administrators, which consent shall not be unreasonably withheld, an office or
offices or agency or agencies where Capital Securities Certificates may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Issuer Trustees in respect of the Trust Securities
Certificates may be served. The Property Trustee initially designates its
Corporate Trust ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: Corporate Trustee Administration Department, as its corporate
trust office for such purposes. The Property Trustee shall give prompt written
notice to the Depositor, the Administrators and to the Holders of any change in
the location of the Securities Register or any such office or agency.
Section 5.10. Appointment of Paying Agent.
The Paying Agent shall make Distributions to Holders from the Payment
Account and shall report the amounts of such Distributions to the Property
Trustee and the Administrators. Any Paying Agent shall have the revocable power
to withdraw funds from the Payment Account solely for the purpose of making the
Distributions referred to above. The Property Trustee may revoke such power and
remove any Paying Agent in its sole discretion. The Paying Agent shall initially
be the Property Trustee. Any Person acting as Paying Agent shall be permitted to
resign as Paying Agent upon 30 days' written notice to the Administrators, and
the Property Trustee. In the event that the Property Trustee shall no longer be
the Paying Agent or a successor Paying Agent shall resign or its authority to
act be revoked, the Property Trustee shall appoint a successor (which shall be a
bank or trust company) that is reasonably acceptable to the Administrators to
act as Paying Agent. Such successor Paying Agent or any additional Paying Agent
appointed by the Property Trustee shall execute and deliver to the Issuer
Trustees an instrument in which such successor Paying Agent or additional Paying
Agent shall agree with the Issuer Trustees that as Paying Agent, such successor
Paying Agent or additional Paying Agent will hold all sums, if any, held by it
for payment to the Holders in trust for the benefit of the Holders entitled
thereto until such sums shall be paid to such Holders. The Paying Agent shall
return all unclaimed funds to the Property Trustee and upon removal of a Paying
Agent such Paying Agent shall also return all funds in its possession to the
Property Trustee. The provisions of Sections 8.1, 8.3 and 8.6 herein shall apply
to the Bank also in its role as Paying Agent, for so long as the Bank shall act
as Paying Agent and, to the extent applicable, to any other paying agent
appointed hereunder. Any reference in this Trust Agreement to the Paying Agent
shall include any co-paying agent chosen by the Property Trustee unless the
context requires otherwise.
Section 5.11. Ownership of Common Securities by Depositor.
At each Closing Time, the Depositor shall acquire and retain beneficial
and record ownership of the Common Securities. Neither the Depositor nor any
successor Holder of the Common Securities may transfer less than all the Common
Securities, and the Depositor or any such successor Holder may transfer the
Common Securities only (i) in connection with a consolidation or merger of the
Depositor into another entity or any conveyance, transfer or lease by the
Depositor of its properties and assets substantially as an entirety to any
Person, pursuant to Section 8.1 of the Indenture, or (ii) to an Affiliate of the
Depositor in compliance with applicable law (including the Securities Act and
applicable state securities and blue sky laws); provided that any such transfer
shall be subject to the condition that the transferor shall have obtained (A)
either a ruling from the Internal Revenue Service or an unqualified written
opinion addressed to the Issuer Trust and delivered to the Issuer Trustees of
nationally recognized independent tax counsel experienced in such matters to the
effect that such transfer will not (1) cause the Issuer Trust to be treated as
issuing a class of interests in the Issuer Trust differing from the class of
interests represented by the Common Securities originally issued to the
Depositor, (2) result in the Issuer Trust acquiring or disposing of, or being
deemed to have acquired or disposed of, an asset, or (3) result in or cause the
Issuer Trust to be treated as anything other than a grantor trust for United
States Federal income tax purposes and (B) an unqualified written opinion
addressed to the Issuer Trust and delivered to the Issuer Trustees of a
nationally recognized independent counsel experienced in such matters that such
transfer will not cause the Issuer Trust to be an "investment company" or
controlled by an "investment company" that is required to be registered under
the Investment Company Act. To the fullest extent permitted by law, any
attempted transfer of the Common Securities, other than as set forth in the
immediately preceding sentence, shall be void. The Administrators shall cause
each Common Securities Certificate issued to the Depositor to contain a legend
stating "THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE DEPOSITOR OR AN
AFFILIATE OF THE DEPOSITOR IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.11 OF
THE TRUST AGREEMENT."
Section 5.12. Notices to Clearing Agency.
To the extent that a notice or other communication to the Holders is
required under this Trust Agreement, with respect to Capital Securities
represented by Global Capital Securities Certificates, the Administrators and
the Issuer Trustees shall give all such notices and communications specified
herein to be given to the Clearing Agency, and shall have no obligations to the
Owners.
Section 5.13. Rights of Holders.
(a) The legal title to the Trust Property is vested exclusively in
the Property Trustee (in its capacity as such) in accordance
with Section 2.9, and the Holders shall not have any right or
title therein other than the undivided beneficial ownership
interest in the assets of the Issuer Trust conferred by their
Trust Securities and they shall have no right to call for any
partition or division of property, profits or rights of the
Issuer Trust except as described below. The Trust Securities
shall be personal property giving only the rights specifically
set forth therein and in this Trust Agreement. The Trust
Securities shall have no preemptive or similar rights and when
issued and delivered to Holders against payment of the purchase
price therefor, as provided herein, will be fully paid and
nonassessable by the Issuer Trust. Except as otherwise provided
in Section 4.8, the Holders of the Trust Securities, in their
capacities as such, shall be entitled to the same limitation of
personal liability extended to stockholders of private
corporations for profit organized under the General Corporation
Law of the State of Delaware.
(b) For so long as any Capital Securities remain Outstanding, if,
upon a Debenture Event of Default, the Debenture Trustee fails
or the holders of not less than 25% in principal amount of the
outstanding Junior Subordinated Debentures fail to declare the
principal of all of the Junior Subordinated Debentures to be
immediately due and payable, the Holders of at least 25% in
Liquidation Amount of the Capital Securities then Outstanding
shall have such right to make such declaration by a notice in
writing to the Property Trustee, the Depositor and the Debenture
Trustee.
At any time after such a declaration of acceleration
with respect to the Junior Subordinated Debentures has been
made and before a judgment or decree for payment of the money
due has been obtained by the Debenture Trustee as provided in
the Indenture, the Holders of a Majority in Liquidation Amount
of the Capital Securities, by written notice to the Property
Trustee, the Depositor and the Debenture Trustee, may rescind
and annul such declaration and its consequences if:
(i) the Depositor has paid or deposited with the Debenture
Trustee a sum sufficient to pay
(1) all overdue installments of interest on all of
the Junior Subordinated Debentures,
(2) any accrued Additional Interest on all of the
Junior Subordinated Debentures,
(3) the principal of any Junior Subordinated
Debentures which have become due otherwise than
by such declaration of acceleration and interest
and Additional Interest thereon at the rate
borne by the Junior Subordinated Debentures, and
(4) all sums paid or advanced by the Debenture
Trustee under the Indenture and the reasonable
compensation, expenses, disbursements and
advances of the Debenture Trustee and the
Property Trustee, their agents and counsel; and
(ii) all Debenture Events of Default, other than the
non-payment of the principal of the Junior Subordinated
Debentures which has become due solely by such
acceleration, have been cured or waived as provided in
Section 5.13 of the Indenture.
The Holders of at least a Majority in Liquidation Amount of the Capital
Securities may, on behalf of the Holders of all the Capital Securities, waive
any past default under the Indenture, except a default in the payment of
principal or interest (unless such default has been cured and a sum sufficient
to pay all matured installments of interest and principal due otherwise than by
acceleration has been deposited with the Debenture Trustee) or a default in
respect of a covenant or provision which under the Indenture cannot be modified
or amended without the consent of the holder of each outstanding Junior
Subordinated Debentures. No such rescission shall affect any subsequent default
or impair any right consequent thereon.
Upon receipt by the Property Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, by Holders of the Capital
Securities all or part of which is represented by Global Capital Securities, a
record date shall be established for determining Holders of Outstanding Capital
Securities entitled to join in such notice, which record date shall be at the
close of business on the day the Property Trustee receives such notice. The
Holders on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to join in such notice, whether or not such Holders
remain Holders after such record date; provided, that, unless such declaration
of acceleration, or rescission and annulment, as the case may be, shall have
become effective by virtue of the requisite percentage having joined in such
notice prior to the day which is 90 days after such record date, such notice of
declaration of acceleration, or rescission and annulment, as the case may be,
shall automatically and without further action by any Holder be canceled and of
no further effect. Nothing in this paragraph shall prevent a Holder, or a proxy
of a Holder, from giving, after expiration of such 90-day period, a new written
notice of declaration of acceleration, or rescission and annulment thereof, as
the case may be, that is identical to a written notice which has been canceled
pursuant to the proviso to the preceding sentence, in which event a new record
date shall be established pursuant to the provisions of this Section 5.13(b).
(c) For so long as any Capital Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this
Trust Agreement and the Indenture, upon a Debenture Event of
Default specified in Section 5.1(1) or 5.1(2) of the Indenture,
any Holder of Capital Securities shall have the right to
institute a proceeding directly against the Depositor, pursuant
to Section 5.8 of the Indenture, for enforcement of payment to
such Holder of the principal amount of or interest on Junior
Subordinated Debentures having an aggregate principal amount
equal to the aggregate Liquidation Amount of the Capital
Securities of such Holder (a "Direct Action"). Except as set
forth in Sections 5.13(b) and 5.13(c), the Holders of Capital
Securities shall have no right to exercise directly any right or
remedy available to the holders of, or in respect of, the Junior
Subordinated Debentures.
The holders of a Majority in Liquidation Amount of the Capital Securities
at the time Outstanding shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Property
Trustee, or exercising any trust or power conferred on the Property Trustee with
respect to the Capital Securities; provided, however, that, the Property Trustee
shall have the right to decline to follow any such direction if the Property
Trustee being advised by counsel determines that the action so directed may not
lawfully be taken, or if the Property Trustee in good faith shall determine that
the proceedings so directed would be illegal or involve it in personal liability
or be unduly prejudicial to the rights of Holders of Capital Securities not
parties to such direction, and provided further that nothing in this Trust
Agreement shall impair the right of the Property Trustee to take any action
deemed proper by the Property Trustee and which is not inconsistent with such
direction by such Holders.
ARTICLE VI
ACTS OF HOLDERS; MEETINGS; VOTING
Section 6.1. Limitations on Holder's Voting Rights.
(a) Except as provided in this Trust Agreement and in the Indenture
and as otherwise required by law, no Holder of Capital
Securities shall have any right to vote or in any manner
otherwise control the administration, operation and management
of the Issuer Trust or the obligations of the parties hereto,
nor shall anything herein set forth or contained in the terms of
the Trust Securities Certificates be construed so as to
constitute the Holders from time to time as members of an
association.
(b) So long as any Junior Subordinated Debentures are held by the
Property Trustee on behalf of the Issuer Trust, the Property
Trustee shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the
Debenture Trustee, or execute any trust or power conferred on
the Property Trustee with respect to such Junior Subordinated
Debentures, (ii) waive any past default that may be waived under
Section 5.13 of the Indenture, (iii) exercise any right to
rescind or annul a declaration that the principal of all the
Junior Subordinated Debentures shall be due and payable or (iv)
consent to any amendment, modification or termination of the
Indenture or the Junior Subordinated Debentures, where such
consent shall be required, without, in each case, obtaining the
prior approval of the Holders of at least a Majority in
Liquidation Amount of the Capital Securities, provided, however,
that where a consent under the Indenture would require the
consent of each holder of Junior Subordinated Debentures
affected thereby, no such consent shall be given by the Property
Trustee without the prior written consent of each Holder of
Capital Securities. The Property Trustee shall not revoke any
action previously authorized or approved by a vote of the
Holders of Capital Securities, except by a subsequent vote of
the Holders of Capital Securities. Subject to Section 8.2, the
Property Trustee shall notify all Holders of the Capital
Securities of any notice of default received with respect to the
Junior Subordinated Debentures. In addition to obtaining the
foregoing approvals of the Holders of the Capital Securities,
prior to taking any of the foregoing actions, the Property
Trustee shall, at the expense of the Depositor, obtain an
Opinion of Counsel experienced in such matters to the effect
that such action will not cause the Issuer Trust to be taxable
other than as a grantor trust for United States Federal income
tax purposes.
(c) If any proposed amendment to the Trust Agreement provides for,
or the Issuer Trust otherwise proposes to effect, (i) any action
that would adversely affect in any material respect the
interests, powers, preferences or special rights of the Capital
Securities, whether by way of amendment to the Trust Agreement
or otherwise, or (ii) the dissolution, winding-up or termination
of the Issuer Trust, other than pursuant to the terms of this
Trust Agreement, then the Holders of Outstanding Trust
Securities as a class will be entitled to vote on such amendment
or proposal and such amendment or proposal shall not be
effective except with the approval of the Holders of at least a
Majority in Liquidation Amount of the Capital Securities; except
as otherwise provided in Section 10.2(c). Notwithstanding any
other provision of this Trust Agreement, no amendment to this
Trust Agreement may be made if, as a result of such amendment,
it would cause the Issuer Trust to be taxable other than as a
grantor trust for United States Federal income tax purposes.
Section 6.2. Notice of Meetings.
Notice of all meetings of the Holders, stating the time, place and purpose
of the meeting, shall be given by the Property Trustee pursuant to Section 10.8
to each Holder of record, at his registered address, at least 15 days and not
more than 90 days before the meeting. At any such meeting, any business properly
before the meeting may be so considered whether or not stated in the notice of
the meeting. Any adjourned meeting may be held as adjourned without further
notice.
Section 6.3. Meetings of Holders.
No annual meeting of Holders is required to be held. The Property Trustee,
however, shall call a meeting of Holders to vote on any matter upon the written
request of the Holders of record of 25% of the aggregate Liquidation Amount of
the Capital Securities and the Administrators or the Property Trustee may, at
any time in their discretion, call a meeting of Holders of Capital Securities to
vote on any matters as to which Holders are entitled to vote.
Holders of at least a Majority in Liquidation Amount of the Capital
Securities, present in person or represented by proxy, shall constitute a quorum
at any meeting of Holders of the Capital Securities.
If a quorum is present at a meeting, an affirmative vote by the Holders of
record present, in person or by proxy, holding Capital Securities representing
at least a Majority in Liquidation Amount of the Capital Securities held by the
Holders present, either in person or by proxy, at such meeting shall constitute
the action of the Holders of Capital Securities, unless this Trust Agreement
requires a greater number of affirmative votes.
Section 6.4. Voting Rights.
Holders shall be entitled to one vote for each $25.00 of Liquidation
Amount represented by their Outstanding Trust Securities in respect of any
matter as to which such Holders are entitled to vote.
Section 6.5. Proxies, etc..
At any meeting of Holders, any Holder entitled to vote thereat may vote by
proxy, provided that no proxy shall be voted at any meeting unless it shall have
been placed on file with the Property Trustee, or with such other officer or
agent of the Issuer Trust as the Property Trustee may direct, for verification
prior to the time at which such vote shall be taken. Pursuant to a resolution of
the Property Trustee, proxies may be solicited in the name of the Property
Trustee or one or more officers of the Property Trustee. Only Holders of record
shall be entitled to vote. When Trust Securities are held jointly by several
persons, any one of them may vote at any meeting in person or by proxy in
respect of such Trust Securities, but if more than one of them shall be present
at such meeting in person or by proxy, and such joint owners or their proxies so
present disagree as to any vote to be cast, such vote shall not be received in
respect of such Trust Securities. A proxy purporting to be executed by or on
behalf of a Holder shall be deemed valid unless challenged at or prior to its
exercise, and the burden of proving invalidity shall rest on the challenger. No
proxy shall be valid more than three years after its date of execution.
Section 6.6. Holder Action by Written Consent.
Any action which may be taken by Holders at a meeting may be taken without
a meeting if Holders holding at least a Majority in Liquidation Amount of all
Trust Securities entitled to vote in respect of such action (or such larger
proportion thereof as shall be required by any other provision of this Trust
Agreement) shall consent to the action in writing.
Section 6.7. Record Date for Voting and Other Purposes.
For the purposes of determining the Holders who are entitled to notice of
and to vote at any meeting or by written consent, or to participate in any
distribution on the Trust Securities in respect of which a record date is not
otherwise provided for in this Trust Agreement, or for the purpose of any other
action, the Administrators or Property Trustee may from time to time fix a date,
not more than 90 days prior to the date of any meeting of Holders or the payment
of a distribution or other action, as the case may be, as a record date for the
determination of the identity of the Holders of record for such purposes.
Section 6.8. Acts of Holders.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Trust Agreement to be given, made 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 an agent duly
appointed in writing; and, except as otherwise expressly provided herein, such
action shall become effective when such instrument or instruments are delivered
to the Property Trustee. 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 Trust Agreement and (subject to Section 8.1) conclusive
in favor of the Issuer Trustees, if made in the manner provided in this Section.
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 of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which any Issuer Trustee or Administrator receiving the same deems
sufficient.
The ownership of Trust Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Trust Security shall bind every future Holder of
the same Trust Security and the Holder of every Trust 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 Issuer Trustees,
the Administrators or the Issuer Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Trust Security may do so with
regard to all or any part of the Liquidation Amount of such Trust Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
If any dispute shall arise among the Holders, the Administrators or the
Issuer Trustees with respect to the authenticity, validity or binding nature of
any request, demand, authorization, direction, consent, waiver or other Act of
such Holder or Issuer Trustee under this Article VI, then the determination of
such matter by the Property Trustee shall be conclusive with respect to such
matter.
A Holder may institute a legal proceeding directly against the Depositor
under the Guarantee to enforce its rights under the Guarantee without first
instituting a legal proceeding against the Guarantee Trustee (as defined in the
Guarantee), the Issuer Trust, any Issuer Trustee, any Administrator or any
person or entity.
Section 6.9. Inspection of Records.
Upon reasonable notice to the Administrators and the Property Trustee, the
records of the Issuer Trust shall be open to inspection by Holders during normal
business hours for any purpose reasonably related to such Holder's interest as a
Holder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
Section 7.1. Representations and Warranties of the Property Trustee
and the Delaware Trustee.
The Property Trustee and the Delaware Trustee, each severally on behalf of
and as to itself, hereby represents and warrants for the benefit of the
Depositor and the Holders that:
(a) The Property Trustee is a banking corporation with corporate
trust powers, duly organized, validly existing and in good
standing under the laws of New York, with corporate trust power
and authority to execute and deliver, and to carry out and
perform its obligations under the terms of this Trust Agreement.
(b) The execution, delivery and performance by the Property Trustee
of this Trust Agreement has been duly authorized by all
necessary corporate action on the part of the Property Trustee;
and this Trust Agreement has been duly executed and delivered by
the Property Trustee, and constitutes a legal, valid and binding
obligation of the Property Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws
affecting creditors' rights generally and to general principles
of equity and the discretion of the court (regardless of whether
the enforcement of such remedies is considered in a proceeding
in equity or at law).
(c) The execution, delivery and performance of this Trust Agreement
by the Property Trustee does not conflict with or constitute a
breach of the certificate of incorporation or by-laws of the
Property Trustee.
(d) At the Closing Time, the Property Trustee has not knowingly
created any Liens on the Trust Securities.
(e) No consent, approval or authorization of, or registration with
or notice to, any New York State or federal banking authority
governing the banking or trust powers of the Property Trustee is
required for the execution, delivery or performance by the
Property Trustee, of this Trust Agreement.
(f) The Delaware Trustee is duly organized, validly existing and in
good standing under the laws of the State of Delaware, with
corporate trust power and authority to execute and deliver, and
to carry out and perform its obligations under the terms of,
this Trust Agreement.
(g) The execution, delivery and performance by the Delaware Trustee
of this Trust Agreement has been duly authorized by all
necessary corporate action on the part of the Delaware Trustee;
and this Trust Agreement has been duly executed and delivered by
the Delaware Trustee, and constitutes a legal, valid and binding
obligation of the Delaware Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws
affecting creditors' right generally and to general principles
of equity and the discretion of the court (regardless of whether
the enforcement of such remedies is considered in a proceeding
in equity or at law).
(h) The execution, delivery and performance of this Trust Agreement
by the Delaware Trustee does not conflict with or constitute a
breach of the certificate of incorporation or by-laws of the
Delaware Trustee.
(i) No consent, approval or authorization of, or registration with
or notice to any Delaware state or federal banking authority
governing the trust powers of the Delaware Trustee is required
for the execution, delivery or performance by the Delaware
Trustee, of this Trust Agreement.
(j) The Delaware Trustee is an entity which has its principal place
of business in the State of Delaware.
Section 7.2. Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the
Holders that:
(a) the Trust Securities Certificates issued at the Closing Time on
behalf of the Issuer Trust have been duly authorized and will
have been duly and validly executed, and, subject to payment
therefor, issued and delivered by the Issuer Trust pursuant to
the terms and provisions of, and in accordance with the
requirements of, this Trust Agreement, and the Holders will be,
as of each such date, entitled to the benefits of this Trust
Agreement; and
(b) there are no taxes, fees or other governmental charges payable
by the Issuer Trust (or the Administrators or Issuer Trustees on
behalf of the Issuer Trust) under the laws of the State of
Delaware or any political subdivision thereof in connection with
the execution, delivery and performance by either the Property
Trustee or the Delaware Trustee, as the case may be, of this
Trust Agreement.
ARTICLE VIII
THE ISSUER TRUSTEES; THE ADMINISTRATORS
Section 8.1. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Issuer Trustees and the
Administrators shall be as provided by this Trust Agreement and,
in the case of the Property Trustee, by the Trust Indenture Act.
Notwithstanding the foregoing, no provision of this Trust
Agreement shall require the Issuer Trustees or the
Administrators to expend or risk their own funds or otherwise
incur any financial liability in the performance of any of their
duties hereunder, or in the exercise of any of their rights or
powers, if they 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. Whether or not
therein expressly so provided, every provision of this Trust
Agreement relating to the conduct or affecting the liability of
or affording protection to the Issuer Trustees or the
Administrators shall be subject to the provisions of this
Section. Nothing in this Trust Agreement shall be construed to
release an Administrator or an Issuer Trustee from liability for
its own negligent action, its own negligent failure to act, or
its own willful misconduct. To the extent that, at law or in
equity, an Issuer Trustee or Administrator has duties and
liabilities relating to the Issuer Trust or to the Holders, such
Issuer Trustee or Administrator shall not be liable to the
Issuer Trust or to any Holder for such Issuer Trustee's or
Administrator's good faith reliance on the provisions of this
Trust Agreement. The provisions of this Trust Agreement, to the
extent that they restrict the duties and liabilities of the
Issuer Trustees and Administrators otherwise existing at law or
in equity, are agreed by the Depositor and the Holders to
replace such other duties and liabilities of the Issuer Trustees
and Administrators.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the
revenue and proceeds from the Trust Property and only to the
extent that there shall be sufficient revenue or proceeds from
the Trust Property to enable the Property Trustee or a Paying
Agent to make payments in accordance with the terms hereof. Each
Holder, by its acceptance of a Trust Security, agrees that it
will look solely to the revenue and proceeds from the Trust
Property to the extent legally available for distribution to it
as herein provided and that neither the Issuer Trustees nor the
Administrators are personally liable to it for any amount
distributable in respect of any Trust Security or for any other
liability in respect of any Trust Security. This Section 8.1(b)
does not limit the liability of the Issuer Trustees expressly
set forth elsewhere in this Trust Agreement or, in the case of
the Property Trustee, in the Trust Indenture Act.
(c) The Property Trustee, before the occurrence of any Event of
Default and after the curing or waiving of all Events of Default
that may have occurred, shall undertake to perform only such
duties as are specifically set forth in this Trust Agreement
(including pursuant to Section 10.10), and no implied covenants
shall be read into this Trust Agreement against the Property
Trustee. If an Event of Default has occurred (that has not been
cured or waived pursuant to this Trust Agreement or Section 5.13
of the Indenture), the Property Trustee shall exercise such of
the rights and powers vested in it by this Trust Agreement, and
use the same degree of care and skill in its exercise thereof,
as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(d) No provision of this Trust Agreement shall be construed to
relieve the Property Trustee from liability for its own
negligent action, its own negligent failure to act, or its own
willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and
after the curing or waiving of all such Events of
Default that may have occurred:
(1) the duties and obligations of the Property
Trustee shall be determined solely by the
express provisions of this Trust Agreement
(including pursuant to Section 10.10), and the
Property Trustee shall not be liable except for
the performance of such duties and obligations
as are specifically set forth in this Trust
Agreement (including pursuant to Section 10.10);
and
(2) in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may
conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon any certificates or
opinions furnished to the Property Trustee and
conforming to the requirements of this Trust
Agreement; but in the case of any such
certificates or opinions that by any provision
hereof or of the Trust Indenture Act are
specifically required to be furnished to the
Property Trustee, the Property Trustee shall be
under a duty to examine the same to determine
whether or not they conform to the requirements
of this Trust Agreement;
(ii) the Property Trustee shall not be liable for any error
of judgment made in good faith by an authorized officer
of the Property Trustee, unless it shall be proved that
the Property Trustee was negligent in ascertaining the
pertinent facts;
(iii) the Property 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
at least a Majority in Liquidation Amount of the Capital
Securities relating to the time, method and place of
conducting any proceeding for any remedy available to
the Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this Trust
Agreement;
(iv) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the
Junior Subordinated Debentures and the Payment Account
shall be to deal with such property in a similar manner
as the Property Trustee deals with similar property for
its own account, subject to the protections and
limitations on liability afforded to the Property
Trustee under this Trust Agreement and the Trust
Indenture Act;
(v) the Property Trustee shall not be liable for any
interest on any money received by it except as it may
otherwise agree with the Depositor; and money held by
the Property Trustee need not be segregated from other
funds held by it except in relation to the Payment
Account maintained by the Property Trustee pursuant to
Section 3.1 and except to the extent otherwise required
by law;
(vi) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrators or the
Depositor with their respective duties under this Trust
Agreement, nor shall the Property Trustee be liable for
the default or misconduct of any other Issuer Trustee,
the Administrators or the Depositor; and
(vii) no provision of this Trust Agreement shall require the
Property Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of
any of its rights or powers, if the Property Trustee
shall have reasonable grounds for believing that the
repayment of such funds or liability is not reasonably
assured to it under the terms of this Trust Agreement or
adequate indemnity against such risk or liability is not
reasonably assured to it.
The Administrators shall not be responsible for monitoring the compliance
by the Issuer Trustees or the Depositor with their respective duties under this
Trust Agreement, nor shall either Administrator be liable for the default or
misconduct of any other Administrator, the Issuer Trustees or the Depositor.
Section 8.2. Events of Default; Waiver.
The Holders of a Majority in Liquidation Amount of the Capital
Securities may, on behalf of the Holders of all the Capital
Securities, waive any past Event of Default and its
consequences, except a default described in clause (b) or (c) of
the definition of "Event of Default" contained in Section 1.1, a
default in respect of a covenant or provision which under this
Trust Agreement cannot be modified or amended without the
consent of the Holder of each Outstanding Capital Security or a
Debenture Event of Default that the Holders of a Majority in
Liquidation Amount of the Capital Securities would not be
entitled to waive pursuant to Section 5.13(b). Upon such waiver,
any such Event of Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured,
for every purpose of this Trust Agreement, but no such waiver
shall extend to any subsequent or other default or Event of
Default or impair any right consequent therefrom.
Section 8.3. Certain Notices.
(a) Within five Business Days after the occurrence of any Event of
Default actually known to a Responsible Officer of the Property
Trustee assigned to its Corporate Trust Office, the Property
Trustee shall transmit, in the manner and to the extent provided
in Section 10.8, notice of such Event of Default to the Holders
and the Administrators, unless such Event of Default shall have
been cured or waived.
(b) Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of
interest on the Junior Subordinated Debentures pursuant to the
Indenture, the Property Trustee shall transmit, in the manner
and to the extent provided in Section 10.8, notice of such
exercise to the Holders and the Administrators, unless such
exercise shall have been revoked.
Section 8.4. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting in good faith upon
any resolution, Opinion of Counsel, certificate, written
representation of a Holder or transferee, certificate of
auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal,
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 direction or act of the Depositor contemplated by this Trust
Agreement shall be sufficiently evidenced by an Officers'
Certificate;
(c) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any re-recording, refiling or reregistration
thereof;
(d) the Property Trustee may consult with counsel of its own
choosing (which counsel may be counsel to the Property Trustee,
the Depositor or any of its Affiliates, and may include any of
its employees) and the advice of such 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 and in accordance with such advice; the
Property Trustee shall have the right at any time to seek
instructions concerning the administration of this Trust
Agreement from any court of competent jurisdiction;
(e) the Property Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Trust Agreement
at the request or direction of any of the Holders pursuant to
this Trust Agreement, unless such Holders shall have offered to
the Property Trustee security or indemnity satisfactory to it
against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
provided that, nothing contained in this Section 8.4(e) shall be
taken to relieve the Property Trustee, upon the occurrence of an
Event of Default, of its obligation to exercise the rights and
powers vested in it by this Trust Agreement in accordance with
the standard specified in Section 8.1(c);
(f) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond, debenture, note
or other evidence of indebtedness or other paper or document,
unless requested in writing to do so by one or more Holders, but
the Property Trustee may make such further inquiry or
investigation into such facts or matters as it may see fit;
(g) the Property Trustee may execute any of the trusts or powers
hereunder or perform any of its duties hereunder either directly
or by or through its agents or attorneys, provided that the
Property Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with
due care by it hereunder;
(h) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any
other action hereunder, the Property Trustee (i) may request
instructions from the Holders (which instructions may only be
given by the Holders of the same proportion in Liquidation
Amount of the Trust Securities as would be entitled to direct
the Property Trustee under the terms of the Trust Securities in
respect of such remedy, right or action), (ii) may refrain from
enforcing such remedy or right or taking such other action until
such instructions are received, and (iii) shall be fully
protected in acting in accordance with such instructions;
(i) except as otherwise expressly provided by this Trust Agreement,
the Property Trustee shall not be under any obligation to take
any action that is discretionary under the provisions of this
Trust Agreement.
(j) whenever in the administration of this Trust Agreement, the
Property Trustee shall deem it desirable that a matter be
established before undertaking, suffering or omitting any action
hereunder, the Property Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its
part, request and rely upon an Officers' Certificate which, upon
receipt of such request, shall be promptly delivered by the
Depositor or the Administrators; and
(k) the Property Trustee shall not be charged with knowledge of an
Event of Default unless an officer of the Property Trustee
assigned to its Corporate Trust Office obtains actual knowledge
of such event or the Property Trustee receives written notice of
such event from the Depositor, any Administrator or Holders
holding a Majority in Liquidation Amount of the Capital
Securities.
No provision of this Trust Agreement shall be deemed to impose any duty or
obligation on any Issuer Trustee or Administrator to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to any Issuer Trustee or
Administrator shall be construed to be a duty.
Section 8.5. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Issuer Trust, and the Issuer Trustees
and the Administrators do not assume any responsibility for their correctness.
The Issuer Trustees and the Administrators shall not be accountable for the use
or application by the Depositor of the proceeds of the Junior Subordinated
Debentures.
Section 8.6. May Hold Securities.
Except as provided in the definition of the term "Outstanding" in Article
I, the Administrators, any Issuer Trustee or any other agent of any Issuer
Trustee or the Issuer Trust, in its individual or any other capacity, may become
the owner or pledgee of Trust Securities and, subject to Sections 8.9 and 8.14,
may otherwise deal with the Issuer Trust with the same rights it would have if
it were not an Administrator, Issuer Trustee or such other agent.
Section 8.7. Compensation; Indemnity; Fees.
The Depositor, as borrower, agrees:
(a) to pay to the Issuer Trustees from time to time reasonable
compensation for all services rendered by them hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(b) to reimburse the Issuer Trustees upon request for all reasonable
expenses, disbursements and advances incurred or made by the
Issuer Trustees in accordance with any provision of this Trust
Agreement (including the reasonable compensation, expenses and
disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to their
negligence or willful misconduct; and
(c) to the fullest extent permitted by applicable law, to indemnify
and hold harmless (i) each Issuer Trustee, (ii) each
Administrator, (iii) any Affiliate of any Issuer Trustee, (iv)
any officer, director, shareholder, employee, representative or
agent of any Issuer Trustee, and (v) any employee or agent of
the Issuer Trust, (referred to herein as an "Indemnified
Person") from and against any loss, damage, liability, tax,
penalty, expense or claim of any kind or nature whatsoever
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.
The provisions of this Section 8.7 shall survive the termination of this
Trust Agreement.
No Issuer Trustee may claim any Lien on any Trust Property as a result of
any amount due pursuant to this Section 8.7.
The Depositor, any Administrator and any Issuer Trustee may engage in or
possess an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the
Issuer Trust, and the Issuer Trust and the Holders of Trust Securities shall
have no rights by virtue of this Trust Agreement in and to such independent
ventures or the income or profits derived therefrom, and the pursuit of any such
venture, even if competitive with the business of the Issuer Trust, shall not be
deemed wrongful or improper. Neither the Depositor, any Administrator, nor any
Issuer Trustee shall be obligated to present any particular investment or other
opportunity to the Issuer Trust even if such opportunity is of a character that,
if presented to the Issuer Trust, could be taken by the Issuer Trust, and the
Depositor, any Administrator or any Issuer Trustee shall have the right to take
for its own account (individually or as a partner or fiduciary) or to recommend
to others any such particular investment or other opportunity. Any Issuer
Trustee may engage or be interested in any financial or other transaction with
the Depositor or any Affiliate of the Depositor, or may act as depository for,
trustee or agent for, or act on any committee or body of holders of, securities
or other obligations of the Depositor or its Affiliates.
Section 8.8. Corporate Property Trustee Required; Eligibility of
Trustees and Administrators.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a
Person that is a national or state chartered bank and eligible
pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000. If any
such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of its supervising or
examining authority, then for the purposes of this Section, the
combined capital and surplus of such Person 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
Property Trustee with respect to the Trust Securities 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 VIII. At the time
of appointment, the Property Trustee must have securities rated
in one of the three highest rating categories by a nationally
recognized statistical rating organization.
(b) There shall at all times be one or more Administrators
hereunder. Each Administrator shall be either a natural person
who is at least 21 years of age or a legal entity that shall act
through one or more persons authorized to bind that entity. An
employee, officer or Affiliate of the Depositor may serve as an
Administrator.
(c) There shall at all times be a Delaware Trustee. The Delaware
Trustee shall either be (i) a natural person who is at least 21
years of age and a resident of the State of Delaware or (ii) a
legal entity with its principal place of business in the State
of Delaware and that otherwise meets the requirements of
applicable Delaware law that shall act through one or more
persons authorized to bind such entity.
Section 8.9. Conflicting Interests.
(a) If the Property Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the
Property Trustee shall either eliminate such interest or resign,
to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Trust Agreement.
(b) The Guarantee, the Indenture, the Guarantee Agreement dated as
of March 31, 1998 between the Depositor and The Chase Manhattan
Bank, as guarantee trustee, relating to City Holding Capital
Trust, and the Amended and Restated Trust Agreement dated as of
March 31, 1998 among the Depositor, as depositor, The Chase
Manhattan Bank, as property trustee, Chase Manhattan Bank
Delaware, as Delaware trustee and the administrators named
therein, relating to City Holding Capital Trust, shall be deemed
to be sufficiently described in this Trust Agreement for the
purposes of clause (i) of the first proviso contained in Section
310(b) of the Trust Indenture Act.
Section 8.10. Co-Trustees and Separate Trustee.
At any time or times, for the purpose of meeting the legal requirements of
the Trust Indenture Act or of any jurisdiction in which any part of the Trust
Property may at the time be located, the Property Trustee shall have power to
appoint, and upon the written request of the Property Trustee, the Depositor and
the Administrators shall for such purpose join with the Property Trustee in the
execution, delivery, and performance of all instruments and agreements necessary
or proper to appoint, one or more Persons approved by the Property Trustee
either to act as co-trustee, jointly with the Property Trustee, of all or any
part of such Trust Property, or to the extent required by law to act as separate
trustee of any such property, in either case with such powers as may be provided
in the instrument of appointment, and to vest in such Person or Persons in the
capacity aforesaid, any property, title, right or power deemed necessary or
desirable, subject to the other provisions of this Section. If the Depositor or
the Administrators do not join in such appointment within 15 days after the
receipt by them of a request to do so, or in case a Debenture Event of Default
has occurred and is continuing, the Property Trustee alone shall have the power
to make such appointment. Any co-trustee or separate trustee appointed pursuant
to this Section shall either be (i) a natural person who is at least 21 years of
age and a resident of the United States or (ii) a legal entity with its
principal place of business in the United States that shall act through one or
more persons authorized to bind such entity.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged and delivered
by the Depositor, provided, that if a Debenture Event of Default shall have
occurred and be continuing the Property Trustee may execute any such instrument
on behalf of the Depositor as its agent and attorney in fact therefor.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:
(a) The Trust Securities Certificates shall be authenticated by the
Property Trustee and the Trust Securities shall be authenticated
and delivered and all rights, powers, duties, and obligations
hereunder in respect of the custody of securities, cash and
other personal property held by, or required to be deposited or
pledged with, the Property Trustee specified hereunder, shall be
exercised, solely by the Property Trustee and not by such
co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property
covered by such appointment shall be conferred or imposed upon
and exercised or performed by the Property Trustee and such
co-trustee or separate trustee jointly, as shall be provided in
the instrument appointing such co-trustee or separate trustee,
except to the extent that under any law of any jurisdiction in
which any particular act is to be performed, the Property
Trustee shall be incompetent or unqualified to perform such act,
in which event such rights, powers, duties and obligations shall
be exercised and performed by such co-trustee or separate
trustee.
(c) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor,
may accept the resignation of or remove any co-trustee or
separate trustee appointed under this Section, and, in case a
Debenture Event of Default has occurred and is continuing, the
Property Trustee shall have power to accept the resignation of,
or remove, any such co-trustee or separate trustee without the
concurrence of the Depositor. Upon the written request of the
Property Trustee, the Depositor shall join with the Property
Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate
such resignation or removal, provided, that, if a Debenture
Event of Default shall have occurred and be continuing the
Property Trustee may execute any such instruments or agreements
on behalf of the Depositor as its agent and attorney-in-fact
therefor. A successor to any co-trustee or separate trustee so
resigned or removed may be appointed in the manner provided in
this Section 8.10.
(d) No co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Property Trustee
or any other trustee hereunder.
(e) The Property Trustee shall not be liable by reason of any act of
a co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and
separate trustee.
Section 8.11. Resignation and Removal; Appointment of Successor.
No resignation or removal of any Issuer Trustee (the "Relevant Trustee")
and no appointment of a successor Issuer Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Issuer
Trustee in accordance with the applicable requirements of Section 8.12.
Subject to the immediately preceding paragraph, an Issuer Trustee may
resign at any time by giving written notice thereof to the Holders and the
Depositor. If the instrument of acceptance by the successor Issuer Trustee
required by Section 8.12 shall not have been delivered to the Relevant Trustee
within 60 days after the giving of such notice of resignation, the Relevant
Trustee may petition, at the expense of the Issuer Trust, any competent court of
the State of Delaware for the appointment of a successor Issuer Trustee.
The Property Trustee or the Delaware Trustee may be removed at any time by
Act of the Holders of at least a Majority in Liquidation Amount of the Capital
Securities, delivered to the Relevant Trustee (in its individual capacity and on
behalf of the Issuer Trust) (i) for cause (including upon the occurrence of an
Event of Default described in subparagraph (e) of the definition thereof with
respect to the Relevant Trustee), or (ii) if a Debenture Event of Default shall
have occurred and be continuing with or without cause at any time.
If a Relevant Trustee shall resign, be removed or become incapable of
acting as Issuer Trustee, or if any vacancy shall occur in the office of any
Issuer Trustee for any cause, the Depositor shall appoint a successor Relevant
Trustee. Within one year after the appointment by the Depositor of a successor
Relevant Trustee, the Holders of the Capital Securities, by Act of the Holders
of record of not less than 25% in aggregate Liquidation Amount of the Capital
Securities then Outstanding delivered to such Relevant Trustee, may appoint a
successor Relevant Trustee, and such successor Relevant Trustee shall comply
with the applicable requirements of Section 8.12 and the successor Relevant
Trustee appointed by the Depositor shall be superseded. If no successor Trustee
shall have been so appointed by the Depositor or the Holders of the Capital
Securities and accepted appointment in the manner required by Section 8.12, any
Holder, on behalf of himself and all others similarly situated, or any other
Issuer Trustee, may petition any court of competent jurisdiction in the State of
Delaware for the appointment of a successor Trustee.
The Property Trustee shall give notice of each resignation and each
removal of a Relevant Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 10.8 and shall give notice to the
Depositor and to the Administrators. Each notice shall include the name of the
Relevant Trustee and the address of its Corporate Trust Office if it is the
Property Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Delaware Trustee who is a natural person dies or
becomes, in the opinion of the Holders of the Common Securities, incompetent or
incapacitated, the vacancy created by such death, incompetence or incapacity may
be filled by (a) the unanimous act of the remaining Administrators if there are
at least two of them or (b) otherwise by the Depositor (with the successor in
each case being a Person who satisfies the eligibility requirement for the
Delaware Trustee set forth in Section 8.8).
Section 8.12. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Relevant Trustee, the
retiring Relevant Trustee and each such successor Relevant Trustee with respect
to the Trust Securities shall execute, acknowledge and deliver an amendment
hereto wherein each successor Relevant Trustee shall accept such appointment and
which shall contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor Relevant Trustee all the
rights, powers, trusts and duties of the retiring Relevant Trustee with respect
to the Trust Securities and the Issuer Trust, and upon the execution and
delivery of such amendment the resignation or removal of the retiring Relevant
Trustee shall become effective to the extent provided therein and each such
successor Relevant Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Relevant Trustee; but, on request of the Issuer Trust or any successor Relevant
Trustee such retiring Relevant Trustee shall, upon payment of its charges, duly
assign, transfer and deliver to such successor Relevant Trustee all Trust
Property, all proceeds thereof and money held by such retiring Relevant Trustee
hereunder with respect to the Trust Securities and the Issuer Trust.
Upon request of any such successor Relevant Trustee, the Issuer Trust and
the Depositor shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Relevant Trustee all such rights,
powers and trusts referred to above.
No successor Relevant Trustee shall accept its appointment unless at the
time of such acceptance such successor Relevant Trustee shall be qualified and
eligible under this Article VIII.
Section 8.13. Merger, Conversion, Consolidation or Succession to
Business.
Any Person into which the Property Trustee or the Delaware Trustee may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Relevant
Trustee shall be a party, or any Person succeeding to all or substantially all
the corporate trust business of such Relevant Trustee, shall be the successor of
such Relevant Trustee hereunder, provided that such Person shall be otherwise
qualified and eligible under this Article VIII, without the execution or filing
of any paper or any further act on the part of any of the parties hereto.
Section 8.14. Preferential Collection of Claims Against Depositor or
Issuer Trust.
If and when the Property Trustee shall be or become a creditor of the
Depositor (or any other obligor upon the Trust Securities), the Property Trustee
shall be subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Depositor (or any such other obligor) only if
this Trust Agreement is subject to the Trust Indenture Act.
Section 8.15. Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other similar judicial
proceeding relative to the Issuer Trust or any other obligor upon the Trust
Securities or the property of the Issuer Trust or of such other obligor, the
Property Trustee (irrespective of whether any Distributions on the Trust
Securities shall then be due and payable and irrespective of whether the
Property Trustee shall have made any demand on the Issuer Trust for the payment
of any past due Distributions) shall be entitled and empowered, to the fullest
extent permitted by law, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Trust
Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the
Property Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the
Property Trustee, its agents and counsel) and of the Holders
allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same; 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 Property Trustee and, in the event the Property
Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Property Trustee any amount due it
for the reasonable compensation, expenses, disbursements and
advances of the Property Trustee, its agents and counsel, and
any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or compensation affecting the Trust
Securities or the rights of any Holder thereof or to authorize the Property
Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 8.16. Reports by Property Trustee.
(a) Not later than January 15th of each year commencing with January
15, 1999, the Property Trustee shall transmit to all Holders in
accordance with Section 10.8, and to the Depositor, a brief
report dated as of the immediately preceding November 15th
concerning the Property Trustee and its actions under this Trust
Agreement if and as may be required pursuant to Section 313(a)
of the Trust Indenture Act.
(b) In addition the Property Trustee shall transmit to Holders such
reports concerning the Property Trustee and its actions under
this Trust Agreement as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant
thereto.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with
the Depositor.
Section 8.17. Reports to the Property Trustee.
The Depositor and the Administrators on behalf of the Issuer Trust shall
provide to the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and the compliance
certificate required by Section 314(a) of the Trust Indenture Act in the form,
in the manner and at the times required by Section 314 of the Trust Indenture
Act. The Depositor and the Administrators shall annually file with the Property
Trustee a certificate specifying whether such Person is in compliance with all
the terms and covenants applicable to such Person hereunder, such compliance
certificate to be delivered annually on or before _____ ___ of each year
beginning in 1999.
Section 8.18. Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrators on behalf of the Issuer Trust
shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Trust Agreement that relate
to any of the matters set forth in Section 314(c) of the Trust Indenture Act.
Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
Section 8.19. Number of Issuer Trustees.
(a) The number of Issuer Trustees shall be two. The Property Trustee
and the Delaware Trustee may be the same Person, in which case,
the number of Issuer Trustees may be one.
(b) If an Issuer Trustee ceases to hold office for any reason, a
vacancy shall occur. The vacancy shall be filled with an Issuer
Trustee appointed in accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of an Issuer
Trustee shall not operate to dissolve, terminate or annul the
Issuer Trust or terminate this Trust Agreement.
Section 8.20. Delegation of Power.
(a) Any Administrator may, by power of attorney consistent with
applicable law, delegate to any other natural person over the
age of 21 his or her power for the purpose of executing any
documents contemplated in Section 2.7(a) or making any
governmental filing; and
(b) The Administrators shall have power to delegate from time to
time to such of their number the doing of such things and the
execution of such instruments either in the name of the Issuer
Trust or the names of the Administrators or otherwise as the
Administrators may deem expedient, to the extent such delegation
is not prohibited by applicable law or contrary to the
provisions of this Trust Agreement.
Section 8.21. Appointment of Administrators.
(a) The Administrators shall be appointed by the Holders of a
Majority in Liquidation Amount of the Common Securities and may
be removed by the Holders of a Majority in Liquidation Amount of
the Common Securities or may resign at any time. Upon any
resignation or removal, the Depositor shall appoint a successor
Administrator. Each Administrator shall execute this Trust
Agreement thereby agreeing to comply with, and be legally bound
by, all of the terms, conditions and provisions of this Trust
Agreement. If at any time there is no Administrator, the
Property Trustee or any Holder who has been a Holder of Trust
Securities for at least six months may petition any court of
competent jurisdiction for the appointment of one or more
Administrators.
(b) Whenever a vacancy in the number of Administrators shall occur,
until such vacancy is filled by the appointment of an
Administrator in accordance with this Section 8.21, the
Administrators in office, regardless of their number (and
notwithstanding any other provision of this Agreement), shall
have all the powers granted to the Administrators and shall
discharge all the duties imposed upon the Administrators by this
Trust Agreement.
(c) Notwithstanding the foregoing, or any other provision of this
Trust Agreement, in the event any Administrator who is a natural
person dies or becomes, in the opinion of the Holders of a
Majority in Liquidation Amount of the Common Securities,
incompetent, or incapacitated, the vacancy created by such
death, incompetence or incapacity may be filled by the remaining
Administrators, if there were at least two of them prior to such
vacancy, and by the Depositor, if there were not two such
Administrators immediately prior to such vacancy (with the
successor in each case being a Person who satisfies the
eligibility requirement for Administrators set forth in Section
8.8).
Section 8.22. Delaware Trustee.
(a) Notwithstanding any other provision of this Trust Agreement, the
Delaware Trustee shall not be entitled to exercise any powers,
nor shall the Delaware Trustee have any of the duties and
responsibilities of the Administrators or the Property Trustee
described in this Trust Agreement. The Delaware Trustee shall be
a trustee for the sole and limited purpose of fulfilling the
requirements of ss. 3807 of the Delaware Business Trust Act.
(b) It is expressly understood and agreed by the parties hereto that
in fulfilling its obligations as Delaware Trustee hereunder on
behalf of the Issuer Trust (i) any agreements or instruments
executed and delivered by Chase Manhattan Bank Delaware are
executed and delivered not in its individual capacity but solely
as Delaware Trustee under this Trust Agreement in the exercise
of the powers and authority conferred and vested in it, (ii)
each of the representations, undertakings and agreements herein
made on the part of the Issuer Trust is made and intended not as
representations, warranties, covenants, undertakings and
agreements by Chase Manhattan Bank Delaware in its individual
capacity but is made and intended for the purpose of binding
only the Issuer Trust, and (iii) under no circumstances shall
Chase Manhattan Bank Delaware be personally liable for the
payment of any indebtedness or expenses of the Issuer Trust or
be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the
Issuer Trust under this Trust Agreement, except if such breach
or failure is due to any gross negligence or willful misconduct
of the Delaware Trustee.
ARTICLE IX
DISSOLUTION, LIQUIDATION AND MERGER
Section 9.1. Dissolution Upon Expiration Date.
Unless earlier dissolved, pursuant to an Early Termination Event, the
Issuer Trust shall automatically dissolve on June 30, 2029 (the "Expiration
Date"), and thereafter the Trust Property shall be distributed in accordance
with Section 9.4.
Section 9.2. Early Dissolution.
The first to occur of any of the following events is an "Early Termination
Event," upon the occurrence of which the Issuer Trust shall dissolve:
(a) the occurrence of the appointment of a receiver or other similar
official in any liquidation, insolvency or similar proceeding
with respect to the Depositor or all or substantially all of its
property, or a court or other governmental agency shall enter a
decree or order relating to the Depositor for relief in a
voluntary or involuntary case under Chapter 7 or Chapter 11 of
the United States Bankruptcy Code or any other similar state or
federal law now or hereafter in effect and such decree or order
shall remain unstayed and undischarged for a period of 60 days,
unless the Depositor shall transfer the Common Securities as
provided by Section 5.11, in which case this provision shall
refer instead to any such successor Holder of the Common
Securities;
(b) the written direction to the Property Trustee from the Holder of
the Common Securities at any time to dissolve the Issuer Trust
and to distribute the Junior Subordinated Debentures to Holders
in exchange for the Capital Securities (which direction, subject
to Section 9.4(a), is optional and wholly within the discretion
of the Holder of the Common Securities);
(c) the repayment of all of the Capital Securities in connection
with the redemption of all the Junior Subordinated Debentures;
and
(d) the entry of an order for dissolution of the Issuer Trust by a
court of competent jurisdiction.
Section 9.3. Termination.
As soon as is practicable after the occurrence of an event referred to in
Section 9.1 or 9.2, and upon the completion of the winding-up and liquidation of
the Issuer Trust, the Administrators and the Issuer Trustees (each of whom is
hereby authorized to take such action) shall file a certificate of cancellation
with the Secretary of State of the State of Delaware terminating the Issuer
Trust and, upon such filing, the respective obligations and responsibilities of
the Issuer Trustees, the Administrators and the Issuer Trust created and
continued hereby shall terminate, except as otherwise required by law or this
Trust Agreement.
Section 9.4. Liquidation.
(a) If an Early Termination Event specified in clause (a), (b) or
(d) of Section 9.2 occurs or upon the Expiration Date, the
Issuer Trust shall be wound-up and liquidated by the Property
Trustee as expeditiously as the Property Trustee determines to
be possible by distributing, after paying or making reasonable
provision to pay all claims and obligations of the Issuer Trust
in accordance with Section 3808(e) of the Delaware Business
Trust Act, to each Holder a Like Amount of Junior Subordinated
Debentures, subject to Section 9.4(d). Notice of liquidation
shall be given by the Property Trustee by first-class mail,
postage prepaid, mailed not later than 15 nor more than 45 days
prior to the Liquidation Date to each Holder of Trust Securities
at such Holder's address appearing in the Securities Register.
All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that, from and after the Liquidation Date, the
Trust Securities will no longer be deemed to be
Outstanding and any Trust Securities Certificates not
surrendered for exchange will be deemed to represent a
Like Amount of Junior Subordinated Debentures; and
(iii) provide such information with respect to the mechanics
by which Holders may exchange Trust Securities
Certificates for Junior Subordinated Debentures, or if
Section 9.4(d) applies receive a Liquidation
Distribution, as the Administrators or the Property
Trustee shall deem appropriate.
(a) Except where Section 9.2(c) or 9.4(d) applies, in order to
effect the liquidation of the Issuer Trust and distribution of
the Junior Subordinated Debentures to Holders, the Property
Trustee shall establish a record date for such distribution
(which shall be not more than 30 days prior to the Liquidation
Date) and, either itself acting as exchange agent or through the
appointment of a separate exchange agent, shall establish such
procedures as it shall deem appropriate to effect the
distribution of Junior Subordinated Debentures in exchange for
the Outstanding Trust Securities Certificates.
(b) Except where Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be
deemed to be Outstanding, (ii) the Clearing Agency for the
Capital Securities or its nominee, as the registered Holder of
the Global Capital Securities Certificates, shall receive a
registered global certificate or certificates representing the
Junior Subordinated Debentures to be delivered upon such
distribution with respect to Capital Securities held by the
Clearing Agency or its nominee, and, (iii) any Trust Securities
Certificates not held by the Clearing Agency for the Capital
Securities or its nominee as specified in clause (ii) above will
be deemed to represent Junior Subordinated Debentures having a
principal amount equal to the stated Liquidation Amount of the
Trust Securities represented thereby and bearing accrued and
unpaid interest in an amount equal to the accumulated and unpaid
Distributions on such Trust Securities until such certificates
are presented to the Securities Registrar for transfer or
reissuance.
(c) If, notwithstanding the other provisions of this Section 9.4,
whether because of an order for dissolution entered by a court
of competent jurisdiction or otherwise, distribution of the
Junior Subordinated Debentures is not practical, or if any Early
Termination Event specified in clause (c) of Section 9.2 occurs,
the Issuer Trust shall be dissolved, and the Trust Property
shall be liquidated, by the Property Trustee in such manner as
the Property Trustee determines. In such event, on the date of
the dissolution of the Issuer Trust, Holders will be entitled to
receive out of the assets of the Issuer Trust available for
distribution to Holders, after paying or making reasonable
provision to pay all claims and obligations of the Issuer Trust
in accordance with Section 3808(e) of the Delaware Business
Trust Act, an amount equal to the aggregate of Liquidation
Amount per Trust Security plus accumulated and unpaid
Distributions thereon to the date of payment (such amount being
the "Liquidation Distribution"). If, upon any such dissolution,
the Liquidation Distribution can be paid only in part because
the Issuer Trust has insufficient assets available to pay in
full the aggregate Liquidation Distribution, then, subject to
the next succeeding sentence, the amounts payable by the Issuer
Trust on the Trust Securities shall be paid on a pro rata basis
(based upon Liquidation Amounts). The Holders of the Common
Securities will be entitled to receive Liquidation Distributions
upon any such dissolution, pro rata (determined as aforesaid)
with Holders of Capital Securities, except that, if a Debenture
Event of Default has occurred and is continuing, the Capital
Securities shall have a priority over the Common Securities as
provided in Section 4.3.
Section 9.5. Mergers, Consolidations, Amalgamations or Replacements
of the Issuer Trust.
The Issuer Trust may not merge with or into, consolidate, amalgamate, or
be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to, any entity, except pursuant to this Section 9.5
or Section 9.4. At the request of the Holders of the Common Securities, and with
the consent of the Holders of at least a Majority in Liquidation Amount of the
Capital Securities, but without the consent of the Issuer Trustees, the Issuer
Trust may merge with or into, consolidate, amalgamate, or be replaced by or
convey, transfer or lease its properties and assets substantially as an entirety
to a trust organized as such under the laws of any state; provided, however,
that (i) such successor entity either (a) expressly assumes all of the
obligations of the Issuer Trust with respect to the Capital Securities or (b)
substitutes for the Capital Securities other securities having substantially the
same terms as the Capital Securities (the "Successor Capital Securities") so
long as the Successor Capital Securities have the same priority as the Capital
Securities with respect to distributions and payments upon liquidation,
redemption and otherwise, (ii) a trustee of such successor entity possessing the
same powers and duties as the Property Trustee is appointed to hold the Junior
Subordinated Debentures, (iii) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not cause the Capital Securities
(including any Successor Capital Securities) to be downgraded by any nationally
recognized statistical rating organization, (iv) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the holders of the Capital
Securities (including any Successor Capital Securities) in any material respect,
(v) such successor entity has a purpose substantially identical to that of the
Issuer Trust, (vi) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Property Trustee has received an
Opinion of Counsel from independent counsel experienced in such matters to the
effect that (a) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights preferences
and privileges of the holders of the Capital Securities (including any Successor
Capital Securities) in any material respect, and (b) following such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease, neither
the Issuer Trust nor such successor entity will be required to register as an
"investment company" under the Investment Company Act and (vii) the Depositor or
any permitted transferee to whom it has transferred the Common Securities
hereunder owns all of the common securities of such successor entity and
guarantees the obligations of such successor entity under the Successor Capital
Securities at least to the extent provided by the Guarantee. Notwithstanding the
foregoing, the Issuer Trust shall not, except with the consent of Holders of
100% in Liquidation Amount of the Capital Securities, consolidate, amalgamate,
merge with or into, or be replaced by or convey, transfer or lease its
properties and assets substantially as an entirety to, any other entity or
permit any other entity to consolidate, amalgamate, merge with or into, or
replace it if such consolidation, amalgamation, merger, replacement, conveyance,
transfer or lease would cause the Issuer Trust or the successor entity to be
taxable other than as a grantor trust for United States Federal income tax
purposes. Any merger or similar agreement shall be executed by the
Administrators on behalf of the Issuer Trust.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.1. Limitations of Rights of Holders.
Except as set forth in Section 9.2, the bankruptcy, dissolution,
termination, death or incapacity of any Person having an interest,
beneficial or otherwise, in Trust Securities shall not operate to
terminate this Trust Agreement, nor entitle the legal
representatives or heirs of such person or any Holder for such
person, to claim an accounting, take any action or bring any
proceeding in any court for a partition or winding-up of the
arrangements contemplated hereby, nor otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
Section 10.2. Amendment.
(a) This Trust Agreement may be amended from time to time by the
Property Trustee and the Holders of a Majority in Liquidation
Amount of the Common Securities, without the consent of any
Holder of the Capital Securities (i) to cure any ambiguity,
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 Trust Agreement, provided, however, that such
amendment shall not adversely affect in any material respect the
interests of any Holder; (ii) to modify, eliminate or add to any
provisions of this Trust Agreement to such extent as shall be
necessary to ensure that the Issuer Trust will not be taxable
other than as a grantor trust for United States Federal income
tax purposes at any time that any Trust Securities are
Outstanding or to ensure that the Issuer Trust will not be
required to register as an investment company under the
Investment Company Act or (iii) in accordance with the
requirements of Section 8.12.
(b) Except as provided in Section 10.2(c) hereof, any provision of
this Trust Agreement may be amended by the Property Trustee and
the Holders of a Majority in Liquidation Amount of the Common
Securities with (i) the consent of Holders of at least a
Majority in Liquidation Amount of the Capital Securities and
(ii) receipt by the Issuer Trustees of an Opinion of Counsel to
the effect that such amendment or the exercise of any power
granted to the Issuer Trustees in accordance with such amendment
will not affect the Issuer Trust's being taxable as a grantor
trust for United States Federal income tax purposes or the
Issuer Trust's exemption from status of an "investment company"
under the Investment Company Act.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Holder
(such consent being obtained in accordance with Section 6.3 or
6.6 hereof), this Trust Agreement may not be amended to (i)
change the amount or timing of any Distribution on the Trust
Securities or otherwise adversely affect the amount of any
Distribution required to be made in respect of the Trust
Securities as of a specified date or (ii) restrict the right of
a Holder to institute suit for the enforcement of any such
payment on or after such date.
(d) Notwithstanding any other provisions of this Trust Agreement, no
Issuer Trustee shall enter into or consent to any amendment to
this Trust Agreement which would cause the Issuer Trust to fail
or cease to qualify for the exemption from status as an
"investment company" under the Investment Company Act or be
taxable other than as a grantor trust for United States Federal
income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the Depositor and the
Administrators, this Trust Agreement may not be amended in a
manner which imposes any additional obligation on the Depositor
or the Administrators.
(f) In the event that any amendment to this Trust Agreement is made,
the Administrators or the Property Trustee shall promptly
provide to the Depositor a copy of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be
required to enter into any amendment to this Trust Agreement
which affects its own rights, duties or immunities under this
Trust Agreement or otherwise. The Property Trustee shall be
entitled to receive an Opinion of Counsel and an Officers'
Certificate stating that any amendment to this Trust Agreement
is in compliance with this Trust Agreement.
(h) The Administrators shall give notice to the Holders of each
amendment to this Trust Agreement, provided, however, that any
failure by the Administrators to deliver, or any defect in, such
notice, shall not affect the validity or effectiveness of any
such amendment.
Section 10.3. Separability.
In case any provision in this Trust Agreement or in the Trust Securities
Certificates 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 10.4. Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
HOLDERS, THE ISSUER TRUST, THE DEPOSITOR, THE ISSUER TRUSTEES AND THE
ADMINISTRATORS SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF DELAWARE AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH
LAWS WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS OF THE STATE OF
DELAWARE OR ANY OTHER JURISDICTION THAT WOULD CALL FOR THE APPLICATION OF THE
LAW OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE; PROVIDED, HOWEVER,
THAT THERE SHALL NOT BE APPLICABLE TO THE HOLDERS, THE ISSUER TRUST, THE
DEPOSITOR, THE ISSUER TRUSTEES, THE ADMINISTRATORS OR THIS TRUST AGREEMENT ANY
PROVISION OF THE LAWS (STATUTORY OR COMMON) OF THE STATE OF DELAWARE PERTAINING
TO TRUSTS OTHER THAN THE DELAWARE BUSINESS TRUST ACT THAT RELATE TO OR REGULATE,
IN A MANNER INCONSISTENT WITH THE TERMS HEREOF (A) THE FILING WITH ANY COURT OR
GOVERNMENTAL BODY OR AGENCY OF TRUSTEE ACCOUNTS OR SCHEDULES OF TRUSTEE FEES AND
CHARGES, (B) AFFIRMATIVE REQUIREMENTS TO POST BONDS FOR TRUSTEES, OFFICERS,
AGENTS OR EMPLOYEES OF A TRUST, (C) THE NECESSITY FOR OBTAINING COURT OR OTHER
GOVERNMENTAL APPROVAL CONCERNING THE ACQUISITION, HOLDING OR DISPOSITION OF REAL
OR PERSONAL PROPERTY, (D) FEES OR OTHER SUMS PAYABLE TO TRUSTEES, OFFICERS,
AGENTS OR EMPLOYEES OF A TRUST, (E) THE ALLOCATION OF RECEIPTS AND EXPENDITURES
TO INCOME OR PRINCIPAL, (F) RESTRICTIONS OR LIMITATIONS ON THE PERMISSIBLE
NATURE, AMOUNT OR CONCENTRATION OF TRUST INVESTMENTS OR REQUIREMENTS RELATING TO
THE TITLING, STORAGE OR OTHER MANNER OF HOLDING OR INVESTING TRUST ASSETS OR (G)
THE ESTABLISHMENT OF FIDUCIARY OR OTHER STANDARDS OF RESPONSIBILITY OR
LIMITATIONS ON THE ACTS OR POWERS OF TRUSTEES THAT ARE INCONSISTENT WITH THE
LIMITATIONS OR LIABILITIES OR AUTHORITIES AND POWERS OF THE ISSUER TRUSTEES OR
THE ADMINISTRATOR AS SET FORTH OR REFERENCED IN THIS TRUST AGREEMENT. SECTION
3540 OF TITLE 12 OF THE DELAWARE CODE SHALL NOT APPLY TO THE ISSUER TRUST.
NOTWITHSTANDING THE FOREGOING, THE IMMUNITIES AND STANDARD OF CARE OF THE
PROPERTY TRUSTEE IN CONNECTION WITH THE ADMINISTRATION OF ITS TRUSTS AND DUTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL
LAWS OF THE STATE OF NEW YORK.
Section 10.5. Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall be a day
that is not a Business Day, then such payment need not be made on such date but
may be made on the next succeeding day that is a Business Day (except as
otherwise provided in Sections 4.2(d)), with the same force and effect as though
made on the date fixed for such payment, and no Distributions shall accumulate
on such unpaid amount for the period after such date.
Section 10.6. Successors.
This Trust Agreement shall be binding upon and shall inure to the benefit
of any successor to the Depositor, the Issuer Trust, the Administrators and any
Issuer Trustee, including any successor by operation of law. Except in
connection with a consolidation, merger or sale involving the Depositor that is
permitted under Article VIII of the Indenture and pursuant to which the assignee
agrees in writing to perform the Depositor's obligations hereunder, the
Depositor shall not assign its obligations hereunder.
Section 10.7. Headings.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
Section 10.8. Reports, Notices and Demands.
Any report, notice, demand or other communication that by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
any Holder or the Depositor may be given or served in writing by deposit
thereof, first class postage prepaid, in the United States mail, hand delivery
or facsimile transmission, in each case, addressed, (a) in the case of a Holder
of Capital Securities, to such Holder as such Holder's name and address may
appear on the Securities Register; and (b) in the case of the Holder of Common
Securities or the Depositor, to City Holding Company, ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Facsimile No.
(▇▇▇) ▇▇▇-▇▇▇▇ or to such other address as may be specified in a written notice
by the Depositor to the Property Trustee. Such notice, demand or other
communication to or upon a Holder shall be deemed to have been sufficiently
given or made, for all purposes, upon hand delivery, mailing or transmission.
Such notice, demand or other communication to or upon the Depositor shall be
deemed to have been sufficiently given or made only upon actual receipt of the
writing by the Depositor.
Any notice, demand or other communication which by any provision of this
Trust Agreement is required or permitted to be given or served to or upon the
Issuer Trust, the Property Trustee, the Delaware Trustee, the Administrators, or
the Issuer Trust shall be given in writing addressed (until another address is
published by the Issuer Trust) as follows: (a) with respect to the Property
Trustee to The Chase Manhattan Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇, Attention: Corporate Trustee Administration Department (b) with
respect to the Delaware Trustee to Chase Manhattan Bank Delaware, ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trustee Administration
Department; (c) with respect to the Administrators, to them at the address above
for notices to the Depositor, marked "Attention: Office of the Chief Financial
Officer and (d) with respect to the Issuer Trust to City Holding Capital Trust
II, c/o City Holding Company, ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇. Such notice, demand or other communication
to or upon the Issuer Trust or the Property Trustee shall be deemed to have been
sufficiently given or made only upon actual receipt of the writing by the Issuer
Trust, the Property Trustee, or such Administrator.
Section 10.9. Agreement Not to Petition.
Each of the Issuer Trustees, the Administrators and the Depositor agree
for the benefit of the Holders that, until at least one year and one day after
the Issuer Trust has been terminated in accordance with Article IX, they shall
not file, or join in the filing of, a petition against the Issuer Trust under
any bankruptcy, insolvency, reorganization or other similar law (including,
without limitation, the United States Bankruptcy Code) (collectively,
"Bankruptcy Laws") or otherwise join in the commencement of any proceeding
against the Issuer Trust under any Bankruptcy Law. In the event the Depositor
takes action in violation of this Section 10.9, the Property Trustee agrees, for
the benefit of Holders, that at the expense of the Depositor, it shall file an
answer with the bankruptcy court or otherwise properly contest the filing of
such petition by the Depositor against the Issuer Trust or the commencement of
such action and raise the defense that the Depositor has agreed in writing not
to take such action and should be estopped and precluded therefrom and such
other defenses, if any, as counsel for the Issuer Trustee or the Issuer Trust
may assert. If any Issuer Trustee or Administrator takes action in violation of
this Section 10.9, the Depositor agrees, for the benefit of the Holders, that at
the expense of the Depositor, it shall file an answer with the bankruptcy court
or otherwise properly contest the filing of such petition by such Person against
the Issuer Trust or the commencement of such action and raise the defense that
such Person has agreed in writing not to take such action and should be estopped
and precluded therefrom and such other defenses, if any, as counsel for the
Depositor may assert. The provisions of this Section 10.9 shall survive the
termination of this Trust Agreement.
Section 10.10. Trust Indenture Act; Conflict with Trust Indenture Act.
(a) Trust Indenture Act; Application. (i) This Trust Agreement is
subject to the provisions of the Trust Indenture Act that are
required to be a part of this Trust Agreement and shall, to the
extent applicable, be governed by such provisions; (ii) if and
to the extent that any provision of this Trust Agreement limits,
qualifies or conflicts with the duties imposed by Sections 310
to 317, inclusive, of the Trust Indenture Act, such imposed
duties shall control; (iii) if any provision of this Trust
Agreement modifies or excludes any provision of the Trust
Indenture Act which may be so modified or excluded, the latter
provision shall be deemed to apply to this Trust Agreement as so
modified or excluded as the case may be, (iv) for purposes of
this Trust Agreement, the Property Trustee, to the extent
permitted by applicable law and/or the rules and regulations of
the Commission, shall be the only Issuer Trustee which is a
trustee for the purposes of the Trust Indenture Act; and (v) the
application of the Trust Indenture Act to this Trust Agreement
shall not affect the nature of the Capital Securities and the
Common Securities as equity securities representing undivided
beneficial interests in the assets of the Issuer Trust.
(b) Disclosure Information. The disclosure of information as to the
names and addresses of the Holders of Trust Securities in
accordance with Section 312 of the Trust Indenture Act,
regardless of the source from which such information was
derived, shall not be deemed to be a violation of any existing
law or any law hereafter enacted which does not specifically
refer to Section 312 of the Trust Indenture Act, nor shall the
Property Trustee be held accountable by reason of mailing any
material pursuant to a request made under Section 312(b) of the
Trust Indenture Act.
Section 10.11. Acceptance of Terms of Trust Agreement, Guarantee and
Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY
OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY
OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT, THE GUARANTEE AND THE
INDENTURE, AND THE AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF
THE GUARANTEE AND THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE
ISSUER TRUST, SUCH HOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS
TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE ISSUER
TRUST AND SUCH HOLDER AND SUCH OTHERS.
* * * *
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.
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed, all as of the day and year first above written.
CITY HOLDING COMPANY
as Depositor
By: ________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:Chief Financial Officer
THE CHASE MANHATTAN BANK
as Property Trustee, and not in its individual
capacity
By: ________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:Trust Officer
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee, and not
in its individual capacity
By: ________________________
Name:
Title:
Agreed to and Accepted by,
------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Administrator
------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Administrator
EXHIBIT A
[INSERT CERTIFICATE OF TRUST FILED WITH DELAWARE]
EXHIBIT B
[INTENTIONALLY OMITTED]
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE
DEPOSITOR OR AN AFFILIATE OF THE DEPOSITOR
IN COMPLIANCE WITH APPLICABLE LAW AND
SECTION 5.11 OF THE TRUST AGREEMENT
Certificate Number Number of Common Securities
C-1
($____________ Aggregate Liquidation Amount)
Certificate Evidencing Common Securities
of
City Holding Capital Trust II
____% Common Securities
(liquidation amount $25.00 per Common Security)
City Holding Capital Trust II, a statutory business trust created
under the laws of the State of Delaware (the "Issuer Trust"), hereby certifies
that City Holding Company, Inc. (the "Holder") is the registered owner of
______________________ (________ ) common securities of the Issuer Trust
representing undivided beneficial interests in the assets of the Issuer Trust
and designated as the City Holding Capital Trust II _____% Common Securities
(liquidation amount $25.00 per Common Security) (the "Common Securities").
Except in accordance with Section 5.11 of the Trust Agreement (as defined below)
the Common Securities are not transferable and any attempted transfer hereof
other than in accordance therewith shall be void. The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Common Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Issuer Trust, dated as of ________, 1998, as the same may be amended from time
to time (the "Trust Agreement") among City Holding Company, as Depositor, The
Chase Manhattan Bank, as Property Trustee, Chase Manhattan Bank Delaware, as
Delaware Trustee, the Administrators named therein and the Holders of Trust
Securities, including the designation of the terms of the Common Securities as
set forth therein. The Issuer Trust will furnish a copy of the Trust Agreement
to the Holder without charge upon written request to the Issuer Trust at its
principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
Terms used but not defined herein have the meanings set forth in the
Trust Agreement.
IN WITNESS WHEREOF, one of the Administrators of the Issuer Trust
has executed this certificate this ___ day of ________, 1998.
CITY HOLDING CAPITAL TRUST II
By:_________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Administrator
Certificate of Authentication:
This is one of the Common Securities referred to in the within mentioned Trust
Agreement.
THE CHASE MANHATTAN BANK,
as Property Trustee
By: ________________________
Authorized Officer
EXHIBIT D
[IF THE CAPITAL SECURITIES CERTIFICATE IS TO BE A GLOBAL CAPITAL SECURITIES
CERTIFICATE, INSERT:] This Capital Securities Certificate is a Global Capital
Securities Certificate within the meaning of the Trust Agreement hereinafter
referred to and is registered in the name of a Depository or a nominee of a
Depository. This Capital Securities Certificate is exchangeable for Capital
Securities Certificates registered in the name of a person other than the
Depository or its nominee only in the limited circumstances described in the
Trust Agreement and may not be transferred except as a whole by the Depository
to a nominee of the Depository or by a nominee of the Depository to the
Depository or another nominee of the Depository, except in the limited
circumstances described in the Trust Agreement.
Unless this Capital Securities Certificate is presented by an
authorized representative of The Depository Trust Company, a New York
Corporation ("DTC"), to City Holding Capital Trust II or its agent for
registration of transfer, exchange or payment, and any Capital Securities
Certificate issued is registered in the name of Cede & Co. or such other name as
is requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO A PERSON IS WRONGFUL inasmuch as the registered owner hereof,
Cede & Co., has an interest herein.
NO EMPLOYEE BENEFIT OR OTHER PLAN OR INDIVIDUAL RETIREMENT ACCOUNT
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE") (EACH, A "PLAN"), NO ENTITY WHOSE UNDERLYING ASSETS INCLUDE
"PLAN ASSETS" BY REASON OF ANY PLAN'S INVESTMENT IN THE ENTITY (A "PLAN ASSET
ENTITY"), AND NO PERSON INVESTING "PLAN ASSETS" OF ANY PLAN, MAY ACQUIRE OR HOLD
THIS CAPITAL SECURITIES CERTIFICATE OR ANY INTEREST HEREIN, UNLESS SUCH PURCHASE
OR HOLDING IS COVERED BY THE EXEMPTIVE RELIEF PROVIDED BY U.S. DEPARTMENT OF
LABOR PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 96-23, 95-60, 91-38, 90-1
OR 84-14 OR ANOTHER APPLICABLE EXEMPTION WITH RESPECT TO SUCH PURCHASE OR
HOLDING. ANY PURCHASER OR HOLDER OF THIS CAPITAL SECURITIES CERTIFICATE OR ANY
INTEREST HEREIN THAT IS A PLAN OR A PLAN ASSET ENTITY OR IS PURCHASING SUCH
SECURITIES ON BEHALF OF OR WITH "PLAN ASSETS" WILL BE DEEMED TO HAVE REPRESENTED
BY ITS PURCHASE AND HOLDING HEREOF THAT (A) THE PURCHASE AND HOLDING OF THE
CAPITAL SECURITIES IS COVERED BY THE EXEMPTIVE RELIEF PROVIDED BY PTCE 96-23,
95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION, (B) THE DEPOSITOR
AND THE ADMINISTRATORS ARE NOT "FIDUCIARIES" WITHIN THE MEANING OF SECTION 3(21)
OF ERISA AND THE REGULATIONS THEREUNDER, WITH RESPECT TO SUCH PERSON'S INTEREST
IN THE CAPITAL SECURITIES OR THE JUNIOR SUBORDINATED DEBENTURES, AND (C) IN
PURCHASING THE CAPITAL SECURITIES SUCH PERSON APPROVES THE PURCHASE OF THE
JUNIOR SUBORDINATED DEBENTURES AND THE APPOINTMENT OF THE ISSUER TRUSTEES.
Certificate Number
D-
CUSIP NO.
Certificate Evidencing Capital Securities
of
City Holding Capital Trust II
_____% Capital Securities
(liquidation amount $25.00 per Capital Security)
City Holding Capital Trust II, a statutory business trust created
under the laws of the State of Delaware (the "Issuer Trust"), hereby certifies
that ______________________ (the "Holder") is the registered owner of
_______________________ Dollars ($____________) aggregate liquidation amount of
capital securities of the Issuer Trust representing a preferred undivided
beneficial interest in the assets of the Issuer Trust and designated as the City
Holding Capital Trust II _____% Capital Securities (liquidation amount $25.00
per Capital Security) (the "Capital Securities"). The Capital Securities are
transferable on the books and records of the Issuer Trust, in person or by a
duly authorized attorney, upon surrender of this certificate duly endorsed and
in proper form for transfer as provided in Section 5.5 of the Trust Agreement
(as defined below). The designations, rights, privileges, restrictions,
preferences and other terms and provisions of the Capital Securities are set
forth in, and this certificate and the Capital Securities represented hereby are
issued and shall in all respects be subject to the terms and provisions of, the
Amended and Restated Trust Agreement of the Issuer Trust, dated as of September
___, 1998, as the same may be amended from time to time (the "Trust Agreement"),
among City Holding Company, as Depositor, The Chase Manhattan Bank, as Property
Trustee, Chase Manhattan Bank Delaware, as Delaware Trustee, the Administrators
named herein and the Holders of Trust Securities, including the designation of
the terms of the Capital Securities as set forth therein. The Holder is entitled
to the benefits of the Guarantee Agreement entered into by City Holding Company,
a West Virginia corporation, as Guarantor, and The Chase Manhattan Bank, as
Guarantee Trustee, dated as of September ___, 1998 (the "Guarantee Agreement"),
to the extent provided therein. The Issuer Trust will furnish a copy of the
Trust Agreement and the Guarantee Agreement to the Holder without charge upon
written request to the Issuer Trust at its principal place of business or
registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
Terms used but not defined herein have the meanings set forth in the
Trust Agreement.
IN WITNESS WHEREOF, one of the Administrators of the Issuer Trust
has executed this certificate this ____ day of ___________, 1998.
CITY HOLDING CAPITAL TRUST II
By:_________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Administrator
Administrator
This is one of the Capital Securities referred to in the within mentioned Trust
Agreement.
THE CHASE MANHATTAN BANK
as Property Trustee
By: ________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Capital Security
to:
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(Insert assignee's social security or tax identification number)
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(Insert address and zip code of assignee)
and irrevocably appoints _______________________________________________________
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agent to transfer this Capital Securities Certificate on the books of the Issuer
Trust. The agent may substitute another to act for him or her.
Date:________________________
Signature:__________________________________________________
(Sign exactly as your name appears on the other side of
this Capital Securities Certificate)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.