GUARANTEE AGREEMENT
Between
CITY HOLDING COMPANY
(as Guarantor)
and
THE CHASE MANHATTAN BANK
(as Guarantee Trustee)
dated as of
March 31, 1998
CITY HOLDING CAPITAL TRUST
Certain Sections of this Guarantee Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Guarantee Agreement
Act Section Section
Section 310 (a) (1)........................ 4.1 (a)
(a) (2)........................ 4.1 (a)
(a) (3)........................ Not Applicable
(a) (4)........................ Not Applicable
(b)............................ 2.8, 4.1 (c)
Section 311 (a)............................ Not Applicable
(b)............................ Not Applicable
Section 312 (a)............................ 2.2 (a)
(b)............................ 2.2 (b)
(c)............................ Not Applicable
Section 313 (a)............................ 2.3
(a) (4)........................ 2.3
(b)............................ 2.3
(c)............................ 2.3
(d)............................ 2.3
Section 314 (a)............................ 2.4
(b)............................ 2.4
(c) (1)........................ 2.5
(c) (2)........................ 2.5
(c) (3)........................ 2.5
(e)............................ 1.1, 2.5, 3.2
Section 315 (a)............................ 3.1 (d)
(b)............................ 2.7
(c)............................ 3.1 (c)
(d)............................ 3.1 (d)
(e)............................ Not Applicable
Section 316 (a)............................ 1.1, 2.6, 5.4
(a) (1) (A).................... 5.4
(a) (1) (B).................... 5.4
(a) (2)........................ Not Applicable
(b)............................ 5.3
(c)............................ Not Applicable
Section 317 (a) (1)........................ Not Applicable
(a) (2)........................ Not Applicable
(b)............................ Not Applicable
Section 318 (a)............................ 2.1
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Guarantee Agreement.
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS
Section 1.1. Definitions........................................ 2
ARTICLE II. TRUST INDENTURE ACT
Section 2.1. Trust Indenture Act; Application................... 5
Section 2.2. List of Holders.................................... 6
Section 2.3. Reports by the Guarantee Trustee................... 6
Section 2.4. Periodic Reports to the Guarantee Trustee.......... 6
Section 2.5. Evidence of Compliance with Conditions Precedent... 6
Section 2.6. Events of Default; Waiver.......................... 7
Section 2.7. Event of Default; Notice........................... 7
Section 2.8. Conflicting Interests.............................. 7
ARTICLE III. POWERS, DUTIES AND RIGHTS OF THE GUARANTEE
TRUSTEE
Section 3.1. Powers and Duties of the Guarantee
Trustee............................................ 8
Section 3.2. Certain Rights of Guarantee Trustee................ 9
Section 3.3. Indemnity.......................................... 11
Section 3.4. Expenses........................................... 11
ARTICLE IV. GUARANTEE TRUSTEE
Section 4.1. Guarantee Trustee; Eligibility..................... 12
Section 4.2. Appointment, Removal and Resignation
of the Guarantee Trustee........................... 12
ARTICLE V. GUARANTEE
Section 5.1. Guarantee.......................................... 13
Section 5.2. Waiver of Notice and Demand........................ 13
Section 5.3. Obligations Not Affected........................... 14
Section 5.4. Rights of Holders.................................. 15
Section 5.5. Guarantee of Payment............................... 15
Section 5.6. Subrogation........................................ 15
Section 5.7. Independent Obligations............................ 16
ARTICLE VI. COVENANTS AND SUBORDINATION
Section 6.1. Subordination...................................... 16
Section 6.2. Pari Passu Guarantees.............................. 16
ARTICLE VII. TERMINATION
Section 7.1. Termination........................................ 16
ARTICLE VIII. MISCELLANEOUS
Section 8.1. Successors and Assigns............................. 17
Section 8.2. Amendments......................................... 17
Section 8.3. Notices............................................ 17
Section 8.4. Benefit............................................ 18
Section 8.5. Interpretation..................................... 19
Section 8.6. Governing Law...................................... 19
Section 8.7. Counterparts....................................... 19
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of March 31, 1998, is
executed and delivered by CITY HOLDING COMPANY, a West Virginia
corporation (the "Guarantor") having its principal office at ▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and THE CHASE
MANHATTAN BANK, a New York banking corporation, as trustee (the
"Guarantee Trustee"), for the benefit of the Holders (as defined
herein) from time to time of the Capital Securities (as defined herein)
of City Holding Capital Trust, a Delaware statutory business trust (the
"Issuer Trust").
WHEREAS, pursuant to an Amended and Restated Trust
Agreement (the "Trust Agreement"), dated as of March 31, 1998, among
City Holding Company, as Depositor, The Chase Manhattan Bank, as
Property Trustee (the "Property Trustee"), Chase Manhattan Bank
Delaware, as Delaware Trustee (the "Delaware Trustee") (collectively,
the "Issuer Trustees") and the Holders from time to time of preferred
undivided beneficial ownership interests in the assets of the Issuer
Trust, the Issuer Trust is issuing $30,000,000 aggregate Liquidation
Amount (as defined herein) of its 9.15% Capital Securities, Liquidation
Amount $1,000 per capital security (the "Capital Securities"),
representing preferred undivided beneficial ownership interests in the
assets of the Issuer Trust and having the terms set forth in the Trust
Agreement;
WHEREAS, the Capital Securities will be issued by the
Issuer Trust and the proceeds thereof, together with the proceeds from
the issuance of the Issuer Trust's Common Securities (as defined
herein), will be used to purchase the 9.15% Junior Subordinated
Deferrable Interest Debentures due April 1, 2028 (the "Junior
Subordinated Debentures") of the Guarantor which will be deposited with
The Chase Manhattan Bank, as Property Trustee under the Trust
Agreement, as trust assets; and
WHEREAS, as incentive for the Holders to purchase the
Capital Securities, the Guarantor desires irrevocably and
unconditionally to agree, to the extent set forth herein, to pay to the
Holders of the Capital Securities the Guarantee Payments (as defined
herein) and to make certain other payments on the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the purchase of the
Capital Securities by each Holder, which purchase the Guarantor hereby
acknowledges shall benefit the Guarantor, and intending to be legally
bound hereby, the Guarantor executes and delivers this Guarantee
Agreement for the benefit of the Holders from time to time of the
Capital Securities.
ARTICLE I. DEFINITIONS
SECTION 1.1. Definitions.
As used in this Guarantee Agreement, the terms set forth
below shall, unless the context otherwise requires, have the following
meanings. Capitalized terms used but not otherwise defined herein
shall have the meanings assigned to such terms in the Trust Agreement
as in effect on the date hereof.
"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.
"Capital Securities" shall have the meaning specified in
the first recital of this Guarantee Agreement.
"Common Securities" means the securities representing
common undivided beneficial interests in the assets of the Issuer Trust.
"Distributions" means preferential cumulative cash
distributions accumulating from March 31, 1998 and payable semiannually
in arrears on April 1 and October 1 of each year, commencing October 1,
1998, at an annual rate of 9.15% of the Liquidation Amount.
"Event of Default" means (i) a default by the Guarantor in
any of its payment obligations under this Guarantee Agreement, or
(ii) a default by the Guarantor in any other obligation hereunder that
remains unremedied for 30 days.
"Guarantee Agreement" means this Guarantee Agreement, as
modified, amended or supplemented from time to time.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Capital
Securities, to the extent not paid or made by or on behalf of the
Issuer Trust: (i) any accumulated and unpaid Distributions (as defined
in the Trust Agreement) required to be paid on the Capital Securities,
to the extent the Issuer Trust shall have funds on hand available
therefor at such time, (ii)the Redemption Price, with respect to the
Capital Securities called for redemption by the Issuer Trust to the
extent that the Issuer Trust shall have funds on hand available
therefor at such time, and (iii)upon a voluntary or involuntary
termination, winding-up or liquidation of the Issuer Trust, unless the
Junior Subordinated Debentures are distributed to the Holders, the
lesser of (a)the aggregate of the Liquidation Amount and all
accumulated and unpaid Distributions to the date of payment to the
extent the Issuer Trust shall have funds on hand available to make such
payment at such time and (b)the amount of assets of the Issuer Trust
remaining available for distribution to Holders on liquidation of the
Issuer Trust (in either case, the "Liquidation Distribution").
"Guarantee Trustee" means The Chase Manhattan Bank, until a
Successor Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Guarantee Agreement and
thereafter means each such Successor Guarantee Trustee.
"Guarantor" shall have the meaning specified in the first
paragraph of this Guarantee Agreement.
"Holder" means any holder, as registered on the books and
records of the Issuer Trust, of any Capital Securities; provided,
however, that, in determining whether the holders of the requisite
percentage of Capital Securities have given any request, notice,
consent or waiver hereunder, "Holder" shall not include the Guarantor,
the Guarantee Trustee, or any Affiliate of the Guarantor or the
Guarantee Trustee.
"Indenture" means the Junior Subordinated Indenture dated
as of March 31, 1998, between City Holding Company and The Chase
Manhattan Bank, as trustee, as may be modified, amended or supplemented
from time to time.
"Issuer Trust" shall have the meaning specified in the
first paragraph of this Guarantee Agreement.
"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 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 $1,000 per
Capital Security.
"Majority in Liquidation Amount of the Capital Securities"
means, except as provided by the Trust Indenture Act, Capital
Securities representing more than 50% of the aggregate Liquidation
Amount of all then outstanding Capital Securities issued by the Issuer
Trust.
"Officers' Certificate" means a certificate signed by the
Chief Executive Officer, President, Executive Vice President or a
Senior Vice President or Vice President, and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary of the
Company, and delivered to the Guarantee Trustee. Any Officers'
Certificate delivered with respect to compliance with a condition or
covenant provided for in this Guarantee Agreement (other than pursuant
to Section 2.4) 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 such
officer, such condition or covenant has been complied with.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint
stock company, limited liability company, trust, unincorporated
association, or government or any agency or political subdivision
thereof, or any other entity of whatever nature.
"Redemption Date" means, with respect to any Capital
Security to be redeemed, the date fixed for such redemption by or
pursuant to the Trust Agreement; provided that each Junior Subordinated
Debenture Redemption Date and the stated maturity of the Junior
Subordinated Debentures shall be a Redemption Date for a Like Amount of
Capital Securities.
"Redemption Price" shall have the meaning specified in the
Trust Agreement.
"Responsible Officer" means, when used with respect to the
Guarantee Trustee, any officer assigned to the Corporate Trust Office,
including any managing director, vice president, assistant vice
president, assistant treasurer, assistant secretary, Senior Trust
Officer, Trust Officer or any other officer of the Guarantee Trustee
customarily performing functions similar to those performed by any of
the above designated officers and having direct responsibility for the
administration of this Guarantee Agreement, 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.
"Senior Indebtedness" shall have the meaning specified in
the Indenture.
"Successor Guarantee Trustee" means a successor Guarantee
Trustee possessing the qualifications to act as Guarantee Trustee under
Section4.1.
"Trust Agreement" means the Amended and Restated Trust
Agreement, dated as of March 31, 1998, executed by City Holding
Company, as Depositor, Chase Manhattan Bank Delaware, as Delaware
Trustee, and The Chase Manhattan Bank, as Property Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939
(15 U.S.C. (Sections) 77aaa-77bbbb), as amended.
"Trust Securities" means the Common Securities and the
Capital Securities.
ARTICLE II. TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application.
This Guarantee Agreement is intended to be in conformity
with the provisions of the Trust Indenture Act that would be required
to be part of this Guarantee Agreement were this Guarantee Agreement to
be qualified under the Trust Indenture Act and shall, to the extent
applicable, and unless otherwise provided herein, be governed by such
provisions. If and to the extent that any provision of this Guarantee
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. If any provision of this Guarantee
Agreement modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be
deemed to apply to this Guarantee Agreement as so modified or excluded,
as the case may be.
SECTION 2.2. List of Holders.
(a) The Guarantor will furnish or cause to be furnished
to the Guarantee Trustee a list of Holders at the following times:
(i) semiannually, not more than 15 days after March
15 and September 15 in each year, a list, in such form as the Guarantee
Trustee may reasonably require, of the names and addresses of the
Holders as of March 15 and September 15; and
(ii) at such other times as the Guarantee Trustee
may request in writing, within 30 days after the receipt by the
Guarantor of any such request, a list of similar form and content as of
a date not more than 15 days prior to the time such list is furnished.
(b) The Guarantee Trustee shall comply with the
requirements of Section 312(b) of the Trust Indenture Act.
SECTION 2.3. Reports by the Guarantee Trustee.
Not later than 60 days after November 15 of each year,
commencing November 15, 1998, the Guarantee Trustee shall provide to
the Holders such reports dated as of such November 15, if any, as are
required by Section313(a) of the Trust Indenture Act in the form and
in the manner provided by Section313 of the Trust Indenture Act. The
Guarantee Trustee shall also comply with the requirements of
Section313(d) of the Trust Indenture Act.
SECTION 2.4. Periodic Reports to the Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee, and
the Holders such documents, reports and information, if any, as
required by Section314 of the Trust Indenture Act and the compliance
certificate required by Section314(a)(4) of the Trust Indenture Act,
in the form, in the manner and at the times required by Section314 of
the Trust Indenture Act.
SECTION 2.5. Evidence of Compliance with Conditions
Precedent.
The Guarantor shall provide to the Guarantee Trustee such
evidence of compliance with such conditions precedent, if any,
provided for in this Guarantee Agreement that relate to any of the
matters set forth in Section314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to
Section314(c)(1) may be given in the form of an Officers' Certificate.
SECTION 2.6. Events of Default; Waiver.
The Holders of a Majority in Liquidation Amount of the
Capital Securities may, on behalf of the Holders, waive any past Event
of Default and its consequences. 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
Guarantee Agreement, but no such waiver shall extend to any subsequent
or other default or Event of Default or impair any right consequent
therefrom.
SECTION 2.7. Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class
postage prepaid, to the Holders, notice of all Events of Default known
to the Guarantee Trustee, unless such Events of Default have been cured
before the giving of such notice; provided that, except in the case of
a default in the payment of a Guarantee Payment, the Guarantee Trustee
shall be protected in withholding such notice if and so long as the
Board of Directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Guarantee Trustee in good
faith determines that the withholding of such notice is in the
interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless a Responsible Officer charged
with the administration of this Guarantee Agreement shall have received
written notice from the Guarantor or a Holder of such Event of Default.
SECTION 2.8. Conflicting Interests.
The Trust Agreement shall be deemed to be specifically
described in this Guarantee Agreement for the purposes of clause (i)of
the first proviso contained in Section310(b) of the Trust Indenture
Act.
ARTICLE III. POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the
Guarantee Trustee for the benefit of the Holders, and the Guarantee
Trustee shall not transfer this Guarantee Agreement to any Person
except a Holder exercising his or her rights pursuant to
Section5.4(iv) or to a Successor Guarantee Trustee on acceptance by
such Successor Guarantee Trustee of its appointment to act as Successor
Guarantee Trustee hereunder. The right, title and interest of the
Guarantee Trustee, as such, hereunder shall automatically vest in any
Successor Guarantee Trustee, upon acceptance by such Successor
Guarantee Trustee of its appointment hereunder, and such vesting and
cessation of title shall be effective whether or not conveyancing
documents have been executed and delivered pursuant to the appointment
of such Successor Guarantee Trustee.
(b) If an Event of Default has occurred and is
continuing, the Guarantee Trustee shall enforce this Guarantee
Agreement for the benefit of the Holders.
(c) The Guarantee Trustee, before the occurrence of any
Event of Default and after the curing of all Events of Default that may
have occurred, shall be obligated to perform only such duties as are
specifically set forth in this Guarantee Agreement (including pursuant
to Section 2.1), and no implied covenants shall be read into this
Guarantee Agreement against the Guarantee Trustee. If an Event of
Default has occurred (that has not been cured or waived pursuant to
Section2.6), the Guarantee Trustee shall exercise such of the rights
and powers vested in it by this Guarantee 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 Guarantee Agreement shall be
construed to relieve the Guarantee 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:
(A) the duties and obligations of the
Guarantee Trustee shall be determined solely by the express provisions
of this Guarantee Agreement (including pursuant to Section 2.1), and
the Guarantee Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this
Guarantee Agreement (including pursuant to Section 2.1); and
(B) in the absence of bad faith on the part of
the Guarantee Trustee, the Guarantee 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
Guarantee Trustee and conforming to the requirements of this Guarantee
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 Guarantee Trustee, the Guarantee
Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Guarantee Agreement;
(ii) The Guarantee Trustee shall not be liable for
any error of judgment made in good faith by a Responsible Officer of
the Guarantee Trustee, unless it shall be proved that the Guarantee
Trustee was negligent in ascertaining the pertinent facts upon which
such judgment was made;
(iii) The Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders of not less than a
Majority in Liquidation Amount of the Capital Securities relating to
the time, method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee, or exercising any trust or power
conferred upon the Guarantee Trustee under this Guarantee Agreement; and
(iv) No provision of this Guarantee Agreement shall
require the Guarantee 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
Guarantee Trustee shall have reasonable grounds for believing that the
repayment of such funds or liability is not assured to it under the
terms of this Guarantee Agreement or adequate indemnity against such
risk or liability is not reasonably assured to it.
SECTION 3.2. Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section3.1:
(i) The Guarantee Trustee may conclusively rely and
shall be fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document reasonably
believed by it to be genuine and to have been signed, sent or presented
by the proper party or parties.
(ii) Any direction or act of the Guarantor
contemplated by this Guarantee Agreement shall be sufficiently
evidenced by an Officers' Certificate unless otherwise prescribed
herein.
(iii) Whenever, in the administration of this
Guarantee Agreement, the Guarantee Trustee shall deem it desirable that
a matter be proved or established before taking, suffering or omitting
to take any action hereunder, the Guarantee Trustee (unless other
evidence is herein specifically prescribed) may, in the absence of bad
faith on its part, request and conclusively rely upon an Officers'
Certificate which, upon receipt of such request from the Guarantee
Trustee, shall be promptly delivered by the Guarantor.
(iv) The Guarantee Trustee may consult with legal
counsel, and the advice or written opinion of such legal counsel with
respect to legal matters shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be
taken by it hereunder in good faith and in accordance with such advice
or opinion. Such legal counsel may be legal counsel to the Guarantor
or any of its Affiliates and may be one of its employees. The
Guarantee Trustee shall have the right at any time to seek instructions
concerning the administration of this Guarantee Agreement from any
court of competent jurisdiction.
(v) The Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Guarantee Agreement at the request or direction of any Holder, unless
such Holder shall have provided to the Guarantee Trustee such security
and indemnity as would satisfy a reasonable person in the position of
the Guarantee Trustee, against the costs, expenses (including
attorneys' fees and expenses) and liabilities that might be incurred by
it in complying with such request or direction, including such
reasonable advances as may be requested by the Guarantee Trustee.
(vi) The Guarantee Trustee shall not be bound to
make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document, but the
Guarantee Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit.
(vii) The Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either
directly or by or through its agents or attorneys, and the Guarantee
Trustee shall not be responsible for any negligence or willful
misconduct on the part of any such agent or attorney appointed with due
care by it hereunder.
(viii) Whenever in the administration of this
Guarantee Agreement the Guarantee Trustee shall deem it desirable to
receive instructions with respect to enforcing any remedy or right or
taking any other action hereunder, the Guarantee Trustee (A)may
request instructions from the Holders of a Majority in Liquidation
Amount of the Capital Securities, (B)may refrain from enforcing such
remedy or right or taking such other action until such instructions are
received and (C)shall be fully protected in acting in accordance with
such instructions.
(b) No provision of this Guarantee Agreement shall be
deemed to impose any duty or obligation on the Guarantee Trustee 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 Guarantee 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 the
Guarantee Trustee shall be construed to be a duty to act in accordance
with such power and authority.
SECTION 3.3 Compensation.
The Guarantor agrees to pay to the Guarantee Trustee from time to
time reasonable compensation for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust) and to
reimburse the Guarantee Trustee upon request for all reasonable
expenses, disbursements and advances incurred or made by the Guarantee
Trustee in accordance with any provision of this Guarantee Agreement.
SECTION 3.4. Indemnity.
The Guarantor agrees to indemnify the Guarantee Trustee
for, and to hold it harmless against, any loss, liability or expense
incurred without negligence, willful misconduct or bad faith on the
part of the Guarantee Trustee, arising out of or in connection with the
acceptance or administration of this Guarantee Agreement, 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 Guarantee Trustee will not claim or exact any
lien or charge on any Guarantee Payments as a result of any amount due
to it under this Guarantee Agreement.
ARTICLE IV. GUARANTEE TRUSTEE
SECTION 4.1. Guarantee Trustee; Eligibility.
(a) There shall at all times be a Guarantee Trustee which
shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the
Trust Indenture Act to act as such and has a combined capital and
surplus of at least $50,000,000, and shall be a corporation meeting the
requirements of Section310(a) of the Trust Indenture Act. If such
corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the supervising or examining
authority, then, for the purposes of this Sectionand to the extent
permitted by the Trust Indenture Act, the combined capital and surplus
of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Guarantee Trustee shall cease to
be eligible to so act under Section4.1(a), the Guarantee Trustee shall
immediately resign in the manner and with the effect set out in
Section4.2(c).
(c) If the Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section310(b) of the
Trust Indenture Act, the Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section310(b) of the Trust
Indenture Act, subject to the penultimate paragraph thereof.
SECTION 4.2. Appointment, Removal and Resignation of the
Guarantee Trustee.
(a) No resignation or removal of the Guarantee Trustee and
no appointment of a Successor Guarantee Trustee pursuant to this
Article shall become effective until the acceptance of appointment by
the Successor Guarantee Trustee by written instrument executed by the
Successor Guarantee Trustee and delivered to the Holders and the
Guarantee Trustee.
(b) Subject to the immediately preceding paragraph, a
Guarantee Trustee may resign at any time by giving written notice
thereof to the Guarantor and the Holders. If the instrument of
acceptance by the Successor Guarantee Trustee shall not have been
delivered to the Guarantee Trustee within 60 days after the giving of
such notice of resignation, the Guarantee Trustee may petition, at the
expense of the Guarantor, any court of competent jurisdiction for the
appointment of a Successor Guarantee Trustee.
(c) The Guarantee Trustee may be removed for cause at any
time by Act (within the meaning of Section 6.8 of the Trust Agreement)
of the Holders of at least a Majority in Liquidation Amount of the
Capital Securities, delivered to the Guarantee Trustee.
(d) If a Guarantee Trustee shall resign, be removed or
become incapable of acting as Guarantee Trustee, or if any vacancy
shall occur in the office of any Guarantee Trustee for any cause, the
Guarantor shall appoint a successor Guarantee Trustee. Within one year
after the appointment by the Guarantor of a successor Guarantee
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 Guarantee
Trustee, may appoint a successor Guarantee Trustee and the successor
Guarantee Trustee appointed by the Guarantor shall be superseded. If
no Successor Guarantee Trustee shall have been so appointed by the
Guarantor or the Holders of the Capital Securities and such appointment
accepted by the Successor Guarantee Trustee, any Holder, on behalf of
himself and all others similarly situated, may petition any court of
competent jurisdiction for the appointment of a Successor Guarantee
Trustee.
ARTICLE V. GUARANTEE
SECTION 5.1. Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay
in full to the Holders the Guarantee Payments (without duplication of
amounts theretofore paid by or on behalf of the Issuer Trust), as and
when due, regardless of any defense, right of set-off or counterclaim
which the Issuer Trust may have or assert, except the defense of
payment. The Guarantor's obligation to make a Guarantee Payment may be
satisfied by direct payment of the required amounts by the Guarantor to
the Holders or by causing the Issuer Trust to pay such amounts to the
Holders. The Guarantor shall give prompt written notice to the
Guarantee Trustee in the event it makes any direct payment hereunder.
SECTION 5.2. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of the
Guarantee Agreement and of any liability to which it applies or may
apply, presentment, demand for payment, any right to require a
proceeding first against the Guarantee Trustee, the Issuer Trust or any
other Person before proceeding against the Guarantor, protest, notice
of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
SECTION 5.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the
Guarantor under this Guarantee Agreement shall in no way be affected or
impaired by reason of the happening from time to time of any of the
following:
(a) the release or waiver, by operation of law or
otherwise, of the performance or observance by the Issuer Trust of any
express or implied agreement, covenant, term or condition relating to
the Capital Securities to be performed or observed by the Issuer Trust;
(b) the extension of time for the payment by the Issuer
Trust of all or any portion of the Distributions (other than an
extension of time for payment of Distributions that results from the
extension of any interest payment period on the Junior Subordinated
Debentures as so provided in the Indenture), Redemption Price,
Liquidation Distribution or any other sums payable under the terms of
the Capital Securities or the extension of time for the performance of
any other obligation under, arising out of, or in connection with, the
Capital Securities;
(c) any failure, omission, delay or lack of diligence on
the part of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to the
terms of the Capital Securities, or any action on the part of the
Issuer Trust granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of debt of, or other similar
proceedings affecting, the Issuer Trust or any of the assets of the
Issuer Trust;
(e) any invalidity of, or defect or deficiency in, the
Capital Securities;
(f) the settlement or compromise of any obligation
guaranteed hereby or hereby incurred; or
(g) any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or defense of a
guarantor (other than payment of the underlying obligation), it being
the intent of this Section5.3 that the obligations of the Guarantor
hereunder shall be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Holders to give notice
to, or obtain the consent of, the Guarantor with respect to the
happening of any of the foregoing.
SECTION 5.4. Rights of Holders.
The Guarantor expressly acknowledges that: (i)this
Guarantee Agreement will be deposited with the Guarantee Trustee to be
held for the benefit of the Holders; (ii)the Guarantee Trustee has the
right to enforce this Guarantee Agreement on behalf of the Holders;
(iii)the Holders of a Majority in Liquidation Amount of the Capital
Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Guarantee
Trustee in respect of this Guarantee Agreement or exercising any trust
or power conferred upon the Guarantee Trustee under this Guarantee
Agreement, provided, however, that, subject to Section 3.1, the
Guarantee Trustee shall have the right to decline to follow any such
direction if the Guarantee Trustee being advised by counsel determines
that the action so directed may not lawfully be taken, or if the
Guarantee Trustee in good faith shall, by a Responsible Officer or
Officers of the Guarantee Trustee, determine that the proceedings so
directed would be illegal or involve it in personal liability or be
unduly prejudicial to the rights of the Holders not party to such
direction, and provided further that nothing in this Guarantee
Agreement shall impair the right of the Guarantee Trustee to take any
action deemed proper by the Guarantee Trustee and which is not
inconsistent with such direction; and (iv)any Holder may institute a
legal proceeding directly against the Guarantor to enforce its rights
under this Guarantee Agreement, without first instituting a legal
proceeding against the Guarantee Trustee, the Issuer Trust or any other
Person.
SECTION 5.5. Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and
not of collection. This Guarantee Agreement will not be discharged
except by payment of the Guarantee Payments in full (without
duplication of amounts theretofore paid by the Issuer Trust) or upon
the distribution of Junior Subordinated Debentures to Holders as
provided in the Trust Agreement.
SECTION 5.6. Subrogation.
The Guarantor shall be subrogated to all rights (if any) of
the Holders against the Issuer Trust in respect of any amounts paid to
the Holders by the Guarantor under this Guarantee Agreement; provided,
however, that the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any
rights which it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment
under this Guarantee Agreement, if at the time of any such payment, any
amounts are due and unpaid under this Guarantee Agreement. If any
amount shall be paid to the Guarantor in violation of the preceding
sentence, the Guarantor agrees to hold such amount in trust for the
Holders and to pay over such amount to the Holders.
SECTION 5.7. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder
are independent of the obligations of the Issuer Trust with respect to
the Capital Securities and that the Guarantor shall be liable as
principal and as debtor hereunder to make Guarantee Payments pursuant
to the terms of this Guarantee Agreement notwithstanding the occurrence
of any event referred to in subsections (a) through (g), inclusive, of
Section5.3 hereof.
ARTICLE VI. COVENANTS AND SUBORDINATION
SECTION 6.1. Subordination.
This Guarantee Agreement will constitute an unsecured
obligation of the Guarantor and will rank subordinate and junior in
right of payment to all Senior Indebtedness of the Guarantor to the
extent and in the manner set forth in the Indenture with respect to the
Junior Subordinated Debentures, and the provisions of Article XIII of
the Indenture will apply, mutatis mutandis, to the obligations of the
Guarantor hereunder. The obligations of the Guarantor hereunder do not
constitute Senior Indebtedness of the Guarantor.
SECTION 6.2. Pari Passu Guarantees.
The obligations of the Guarantor under this Guarantee
Agreement shall rank pari passu with any similar guarantee agreements
issued by the Guarantor on behalf of the holders of preferred or
capital securities issued by any other trust similar to the Issuer
Trust and with any other security, guarantee or other obligation that
is expressly stated to rank pari passu with the obligations of the
Guarantor under this Guarantee Agreement.
ARTICLE VII. TERMINATION
SECTION 7.1. Termination.
This Guarantee Agreement shall terminate and be of no
further force and effect upon (i)full payment of the Redemption Price
of all Capital Securities, (ii)the distribution of Junior Subordinated
Debentures to the Holders in exchange for all of the Capital
Securities, (iii)full payment of the amounts payable in accordance
with Article IX of the Trust Agreement upon liquidation of the Issuer
Trust, or (iv) the exchange of this Guarantee Agreement for the
Exchange Guarantee Agreement, provided, that, all Private Capital
Securities shall have been exchanged for Exchange Capital Securities
pursuant to the Exchange Offer. Notwithstanding the foregoing, this
Guarantee Agreement will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder is required
to restore payment of any sums paid under the Capital Securities or
this Guarantee Agreement.
ARTICLE VIII. MISCELLANEOUS
SECTION 8.1. Successors and Assigns.
All guarantees and agreements contained in this Guarantee
Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the
Holders of the Capital Securities then outstanding. Except in
connection with a consolidation, merger or sale involving the Guarantor
that is permitted under Article VIII of the Indenture and pursuant to
which the assignee agrees in writing to perform the Guarantor's
obligations hereunder, the Guarantor shall not assign its obligations
hereunder, and any purported assignment that is not in accordance with
these provisions shall be void.
SECTION 8.2. Amendments.
Except with respect to any changes that do not materially
adversely affect the rights of the Holders (in which case no consent of
the Holders will be required), this Guarantee Agreement may only be
amended with the prior approval of the Holders of not less than a
Majority in Liquidation Amount of the Capital Securities. The
provisions of Article VI of the Trust Agreement concerning meetings or
consents of the Holders shall apply to the giving of such approval.
SECTION 8.3. Notices.
Any notice, request or other communication required or
permitted to be given hereunder shall be in writing, duly signed by the
party giving such notice, and delivered, telecopied with receipt
confirmed, or mailed by first class mail as follows:
(a) if given to the Guarantor, to the address or telecopy
number set forth below or such other address or telecopy number or to
the attention of such other Person as the Guarantor may give notice to
the Guarantee Trustee and the Holders:
City Holding Company
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(b) if given to the Issuer Trust at the Issuer Trust's
(and the Guarantee Trustee's) address or telecopy number set forth
below or such other address or telecopy number or to the attention of
such other Person as the Issuer Trust or the Guarantee Trustee may give
notice to the Guarantee Trustee (if given by the Issuer Trust) and the
Holders:
City Holding Capital Trust
c/o City Holding Company
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with a copy to:
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trustee Administration
(c) if given to the Guarantee Trustee, to the address or
telecopy number set forth below or such other address or telecopy
number or to the attention of such other Person as the Guarantee
Trustee may give notice to the Guarantor and the Holders:
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trustee Administration
(d) if given to any Holder, at the address set forth on
the books and records of the Issuer Trust.
All notices hereunder shall be deemed to have been given
when received in person, telecopied with receipt confirmed, or mailed
by first class mail, postage prepaid, except that if a notice or other
document is refused delivery or cannot be delivered because of a
changed address of which no notice was given, such notice or other
document shall be deemed to have been delivered on the date of such
refusal or inability to deliver.
SECTION 8.4. Benefit.
This Guarantee Agreement is solely for the benefit of the
Holders and is not separately transferable from the Capital Securities.
SECTION 8.5. Interpretation.
In this Guarantee Agreement, unless the context otherwise
requires:
(a) capitalized terms used in this Guarantee Agreement
but not defined in the preamble hereto have the respective meanings
assigned to them in Section1.1;
(b) a term defined anywhere in this Guarantee Agreement
has the same meaning throughout;
(c) all references to "the Guarantee Agreement" or "this
Guarantee Agreement" are to this Guarantee Agreement as modified,
supplemented or amended from time to time;
(d) all references in this Guarantee Agreement to
Articles and Sections are to Articles and Sections of this Guarantee
Agreement unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the
same meaning when used in this Guarantee Agreement unless otherwise
defined in this Guarantee Agreement or unless the context otherwise
requires;
(f) a reference to the singular includes the plural and
vice versa; and
(g) the masculine, feminine or neuter genders used herein
shall include the masculine, feminine and neuter genders.
SECTION 8.6. Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
SECTION 8.7. Counterparts.
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.
THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
CITY HOLDING COMPANY
as Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
THE CHASE MANHATTAN BANK,
as Guarantee Trustee, and not
in its individual capacity
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President