EXECUTION COPY
EXHIBIT 4.1
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CENTRAL FIDELITY BANKS, INC.
to
THE BANK OF NEW YORK
Trustee
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JUNIOR SUBORDINATED INDENTURE
Dated as of April 23, 1997
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TABLE OF CONTENTS
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ARTICLE I
Definitions and Other Provisions of
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General Application
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SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Compliance Certificate and
Opinions. . . . . . . . . . . . . . . . . . 13
SECTION 1.03. Forms of Documents Delivered to
Trustee . . . . . . . . . . . . . . . . . . 14
SECTION 1.04. Acts of Holders . . . . . . . . . . . . . . . 15
SECTION 1.05. Notices, Etc. to Trustee and
Company . . . . . . . . . . . . . . . . . . 16
SECTION 1.06. Notice to Holders; Waiver . . . . . . . . . . 17
SECTION 1.07. Conflict with Trust Indenture Act . . . . . . 17
SECTION 1.08. Effect of Headings and Table of
Contents. . . . . . . . . . . . . . . . . . 17
SECTION 1.09. Successors and Assigns. . . . . . . . . . . . 17
SECTION 1.10. Separability Clause . . . . . . . . . . . . . 18
SECTION 1.11. Benefits of Indenture . . . . . . . . . . . . 18
SECTION 1.12. Governing Law . . . . . . . . . . . . . . . . 18
SECTION 1.13. Non-Business Days . . . . . . . . . . . . . . 18
ARTICLE II
Security Forms
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SECTION 2.01. Forms Generally . . . . . . . . . . . . . . . 18
SECTION 2.02. Form of Face of Security. . . . . . . . . . . 19
SECTION 2.03. Form of Reverse of Security . . . . . . . . . 26
SECTION 2.04. Additional Provisions Required in
Global Security . . . . . . . . . . . . . . 31
SECTION 2.05. Form of Trustee's Certificate of
Authentication. . . . . . . . . . . . . . . 32
ARTICLE III
The Securities
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SECTION 3.01. Title and Terms . . . . . . . . . . . . . . . 32
SECTION 3.02. Denominations . . . . . . . . . . . . . . . . 35
SECTION 3.03. Execution, Authentication, Delivery
and Dating. . . . . . . . . . . . . . . . . 35
SECTION 3.04. Temporary Securities. . . . . . . . . . . . . 37
SECTION 3.05. Global Securities . . . . . . . . . . . . . . 38
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SECTION 3.06. Registration, Transfer and Exchange
Generally; Certain Transfers and
Exchanges; Restricted Securities
Legends . . . . . . . . . . . . . . . . . 40
SECTION 3.07. Mutilated, Destroyed, Lost and
Stolen Securities. . . . . . . . . . . . . 44
SECTION 3.08. Payment of Interest; Interest
Rights Preserved . . . . . . . . . . . . . 45
SECTION 3.09. Persons Deemed Owners. . . . . . . . . . . . 47
SECTION 3.10. Cancelation. . . . . . . . . . . . . . . . . 47
SECTION 3.11. Computation of Interest. . . . . . . . . . . 48
SECTION 3.12. Deferrals of Interest Payment
Dates. . . . . . . . . . . . . . . . . . . . 48
SECTION 3.13. CUSIP Numbers. . . . . . . . . . . . . . . . 50
ARTICLE IV
Satisfaction and Discharge
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SECTION 4.01. Satisfaction and Discharge of
Indenture. . . . . . . . . . . . . . . . . 50
SECTION 4.02. Application of Trust Money . . . . . . . . . 52
ARTICLE V
Remedies
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SECTION 5.01. Events of Default. . . . . . . . . . . . . . 52
SECTION 5.02. Acceleration of Maturity;
Rescission and Annulment . . . . . . . . . 54
SECTION 5.03. Collection of Indebtedness and
Suits for Enforcement by Trustee . . . . . 56
SECTION 5.04. Trustee May File Proofs of Claim . . . . . . 57
SECTION 5.05. Trustee May Enforce Claim Without
Possession of Securities . . . . . . . . . 58
SECTION 5.06. Application of Money Collected . . . . . . . 58
SECTION 5.07. Limitation on Suits. . . . . . . . . . . . . 59
SECTION 5.08. Unconditional Right of Holders to
Receive Principal and Interest . . . . . . 59
SECTION 5.09. Restoration of Rights and Remedies . . . . . 60
SECTION 5.10. Rights and Remedies Cumulative . . . . . . . 60
SECTION 5.11. Delay or Omission Not Waiver . . . . . . . . 61
SECTION 5.12. Control by Holders . . . . . . . . . . . . . 61
SECTION 5.13. Waiver of Past Defaults. . . . . . . . . . . 62
SECTION 5.14. Undertaking for Costs. . . . . . . . . . . . 62
SECTION 5.15. Waiver of Usury, Stay or Extension
Laws . . . . . . . . . . . . . . . . . . . 63
ARTICLE VI
The Trustee
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SECTION 6.01. Certain Duties and
Responsibilities. . . . . . . . . . . . . . 63
SECTION 6.02. Notice of Defaults. . . . . . . . . . . . . . 64
SECTION 6.03. Certain Rights of Trustee . . . . . . . . . . 65
SECTION 6.04. Not Responsible for Recitals or
Issuance of Securities. . . . . . . . . . . 67
SECTION 6.05. May Hold Securities . . . . . . . . . . . . . 67
SECTION 6.06. Money Held in Trust . . . . . . . . . . . . . 67
SECTION 6.07. Compensation and Reimbursement. . . . . . . . 67
SECTION 6.08. Disqualification; Conflicting
Interests . . . . . . . . . . . . . . . . . 68
SECTION 6.09. Corporate Trustee Required;
Eligibility . . . . . . . . . . . . . . . . 68
SECTION 6.10. Resignation and Removal;
Appointment of Successor. . . . . . . . . . 69
SECTION 6.11. Acceptance of Appointment by
Successor . . . . . . . . . . . . . . . . . 71
SECTION 6.12. Merger, Conversion, Consolidation
or Succession to Business . . . . . . . . . 72
SECTION 6.13. Preferential Collection of Claims
Against Company . . . . . . . . . . . . . . 73
SECTION 6.14. Appointment of Authenticating
Agent . . . . . . . . . . . . . . . . . . . 73
SECTION 6.15. Trustee's Rights and Obligations
After Qualification of Indenture. . . . . . 75
ARTICLE VII
Holder's Lists and Reports by Trustee and Company
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SECTION 7.01. Company to Furnish Trustee Names
and Addresses of Holders. . . . . . . . . . 76
SECTION 7.02. Preservation of Information,
Communications to Holders . . . . . . . . . 76
SECTION 7.03. Reports by Trustee. . . . . . . . . . . . . . 76
SECTION 7.04. Reports by Company. . . . . . . . . . . . . . 77
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
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SECTION 8.01. Company May Consolidate, etc., Only
on Certain Terms. . . . . . . . . . . . . . 77
SECTION 8.02. Successor Company
Substituted . . . . . . . . . . . . . . . . 79
ARTICLE IX
Supplemental Indentures
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SECTION 9.01. Supplemental Indentures without
Consent of Holders. . . . . . . . . . . . . 79
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SECTION 9.02. Supplemental Indentures with
Consent of Holders . . . . . . . . . . . . 81
SECTION 9.03. Execution of Supplemental
Indentures . . . . . . . . . . . . . . . . 83
SECTION 9.04. Effect of Supplemental
Indentures . . . . . . . . . . . . . . . . 83
SECTION 9.05. Conformity with Trust Indenture
Act. . . . . . . . . . . . . . . . . . . . 83
SECTION 9.06. Reference in Securities to
Supplemental Indentures. . . . . . . . . . 84
ARTICLE X
Covenants
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SECTION 10.01. Payment of Principal and Interest. . . . . . 84
SECTION 10.02. Maintenance of Office or Agency. . . . . . . 84
SECTION 10.03. Money for Security Payments to be
Held in Trust. . . . . . . . . . . . . . . 85
SECTION 10.04. Statement as to Compliance . . . . . . . . . 86
SECTION 10.05. Waiver of Certain Covenants. . . . . . . . . 87
SECTION 10.06. Payment of the Trust's Costs and
Expenses . . . . . . . . . . . . . . . . . 87
SECTION 10.07. Additional Covenants . . . . . . . . . . . . 88
SECTION 10.08. Information Returns. . . . . . . . . . . . . 89
SECTION 10.09. Statement by Officers as to
Default. . . . . . . . . . . . . . . . . . 89
SECTION 10.10. Delivery of Certain Information. . . . . . . 89
ARTICLE XI
Redemption or Prepayment of Securities
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SECTION 11.01. Applicability of This Article. . . . . . . . 90
SECTION 11.02. Election to Redeem; Notice to
Trustee. . . . . . . . . . . . . . . . . . 90
SECTION 11.03. Selection of Securities to be
Redeemed . . . . . . . . . . . . . . . . . 91
SECTION 11.04. Notice of Redemption . . . . . . . . . . . . 91
SECTION 11.05. Deposit of Redemption Price. . . . . . . . . 92
SECTION 11.06. Payment of Securities Called for
Redemption . . . . . . . . . . . . . . . . 93
SECTION 11.07. Company's Right of Redemption. . . . . . . . 93
ARTICLE XII
Exchange and Registration Rights
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SECTION 12.01. Exchange . . . . . . . . . . . . . . . . . . 94
SECTION 12.02. Registration . . . . . . . . . . . . . . . . 95
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SECTION 12.03. Special Interest....................................... 95
SECTION 12.04. Compliance with Law.................................... 95
ARTICLE XIII
Sinking Funds
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SECTION 13.01. Applicability of Article............................... 96
SECTION 13.02. Satisfaction of Sinking Fund Payments with Securities.. 96
SECTION 13.03. Redemption of Securities for Sinking Fund.............. 97
ARTICLE XIV
Subordination of Securities
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SECTION 14.01. Securities Subordinate to Senior Debt.................. 99
SECTION 14.02. Payment Over of Proceeds Upon Dissolution, Etc......... 99
SECTION 14.03. Prior Payment to Senior Debt Upon Acceleration of
Securities........................................... 101
SECTION 14.04. No Payment When Senior Debt in Default................. 101
SECTION 14.05. Payment Permitted If No Default........................ 102
SECTION 14.06. Subrogation to Rights of Holders of Senior Debt........ 103
SECTION 14.07. Provisions Solely to Define Relative Rights............ 103
SECTION 14.08. Trustee to Effectuate Subordination.................... 104
SECTION 14.09. No Waiver of Subordination Provisions.................. 104
SECTION 14.10. Notice to Trustee...................................... 104
SECTION 14.11. Reliance on Judicial Order or Certificate of
Liquidating Agent.................................... 105
SECTION 14.12. Trustee Not Fiduciary for Holders of Senior Debt....... 105
SECTION 14.13. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights..................... 105
SECTION 14.14. Article Applicable to Paying Agents.................... 105
SECTION 14.15. Certain Conversions or Exchanges Deemed Payments....... 105
Exhibit A - Form of Restricted Securities Certificate
CENTRAL FIDELITY BANKS, INC.
Reconciliation and tie between the Trust Indenture Act of 1939
(including cross-references to provisions of Sections 310 to and including 317
which, pursuant to Section 318(c) of the Trust Indenture Act of 1939, as amended
by the Trust Reform Act of 1990, are a part of and govern the Indenture whether
or not physically contained therein) and the Junior Subordinated Indenture,
dated as of April 23, 1997.
Indenture
Trust Indenture Act Section Section
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(S)310(a)(1), (2) and (5).................................... 6.09
(S)310(a)(3)................................................. Not Applicable
(S)310(a)(4)................................................. Not Applicable
(S)310(b).................................................... 6.08, 6.10
(S)310(c).................................................... Not Applicable
(S)311(a).................................................... 6.13
(S)311(b).................................................... 6.13
(S)311(c).................................................... Not Applicable
(S)312(a).................................................... 7.01, 7.02(a)
(S)312(b).................................................... 7.02(b)
(S)312(c).................................................... 7.02(c)
(S)313(a).................................................... 7.03(a)
(S)313(b).................................................... 7.03(b)
(S)313(c).................................................... 7.03(a), 7.03(b)
(S)313(d).................................................... 7.03(c)
(S)314(a)(1), (2) and (3).................................... 7.04
(S)314(a)(4)................................................. 10.04
(S)314(b).................................................... Not Applicable
(S)314(c)(1)................................................. 1.02
(S)314(c)(2)................................................. 1.02
(S)314(c)(3)................................................. Not Applicable
(S)314(d).................................................... Not Applicable
(S)314(e).................................................... 1.02
(S)314(f).................................................... Not Applicable
(S)315(a).................................................... 6.01(a)
(S)315(b).................................................... 6.02, 7.03(a)
(S)315(c).................................................... 6.01(b)
(S)315(d).................................................... 6.01(c)
(S)315(d)(1)................................................. 6.01(c)(1)
(S)315(d)(2)................................................. 6.01(c)(2)
(S)315(d)(3)................................................. 6.01(c)(3)
(S)315(e).................................................... 5.14
(S)316(a).................................................... 5.12
(S)316(a)(1)(A).............................................. 5.12
(S)316(a)(1)(B).............................................. 5.13
(S)316(a)(2)................................................. Not Applicable
(S)316(b).................................................... 5.08
(S)316(c).................................................... 1.04(f)
(S)317(a)(1)................................................. 5.03
(S)317(a)(2)................................................. 5.04
(S)317(b).................................................... 10.03
(S)318(a).................................................... 1.07
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Note:
This reconciliation and tie shall not, for any purpose, be deemed to be a part
of the Junior Subordinated Indenture.
JUNIOR SUBORDINATED INDENTURE, dated as of April 23, 1997, between
CENTRAL FIDELITY BANKS, INC., a bank holding company established under
the laws of the Commonwealth of Virginia (hereinafter called the
"Company") having its principal office at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, and THE BANK OF NEW YORK, a
New York banking corporation, as Trustee (hereinafter called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured junior
subordinated debt securities in series (hereinafter called the "Securities") of
substantially the tenor hereinafter provided, including, without limitation,
Securities issued to evidence loans made to the Company of the proceeds from the
issuance from time to time by one or more business trusts (each a "Central
Fidelity Capital Trust" and, collectively, the "Central Fidelity Capital
Trusts") of preferred trust interests in such Central Fidelity Capital Trusts
(the "Capital Securities") and common interests in such Central Fidelity Capital
Trusts (the "Common Securities" and, collectively with the Capital Securities,
the "Trust Securities"), and to provide the terms and conditions upon which the
Securities are to be authenticated, issued and delivered.
NOW THEREFORE, THIS INDENTURE WITNESSETH: For and in consideration of
the premises and the purchase of the Securities by the Holders thereof, it is
mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities or of any series thereof, as follows:
ARTICLE I
Definitions and Other Provisions of General Application
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SECTION 1.01. Definitions. For all purposes of this Indenture,
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except as otherwise expressly provided or unless the context otherwise requires:
(1) The terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular.
2
(2) All other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein.
(3) All accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles" with respect
to any computation required or permitted hereunder shall mean such accounting
principles which are generally accepted at the date or time of such computation;
provided, that when two or more principles are so generally accepted, it shall
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mean that set of principles consistent with those in use by the Company.
(4) The words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified
in Section 1.04.
"Additional Interest" means the interest, if any, that shall accrue on
any interest on the Securities of any series the payment of which has not been
made on the applicable Interest Payment Date and which shall accrue at the rate
per annum specified or determined as specified in any Officers' Certificate
delivered pursuant to Section 3.01 of the Indenture.
"Additional Sums" has the meaning specified in Section 10.06.
"Administrative Action" has the meaning specified in the definition
of "Tax Event" in this Section 1.01.
"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.
"Agent Member" means any member of, or participant in, the
Depositary.
3
"Amended and Restated Declaration of Trust" for each series of
Securities has the meaning specified in the Officers' Certificate for such
series delivered pursuant to Section 3.01 of this Indenture.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the board of directors of the
Company or any committee of that board duly authorized to act hereunder.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors, or such committee of the Board of Directors or officers
of the Company 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 Trustee.
"Business Day" means any day other than (i) a Saturday or Sunday, (ii)
a day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed, or (iii) a day on which the
Corporate Trust Office of the Trustee, or, with respect to the Securities of a
series issued to a Central Fidelity Capital Trust, the Corporate Trust Office of
the Property Trustee under the related Trust Agreement, is closed for business.
"Calculation Agent" means The Bank of New York and its respective
successors.
"Capital Securities" has the meaning specified in the first recital of
this Indenture, and shall include, where appropriate, Exchange Capital
Securities as defined in Article XII.
"Capital Treatment Event" means the Company shall have received an
opinion of independent bank regulatory counsel experienced in such matters to
the effect that, as a result of (a) 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 any rules, guidelines or policies of the Federal Reserve or (b) any official
or administrative pronouncement or action or judicial decision interpreting or
applying such laws or
4
regulations, which amendment or change is effective or such pronouncement,
action or decision is announced on or after the Original Issue Date of the
Capital Securities, the Company will not be entitled to treat the Capital
Securities as "Tier 1 Capital" (or the equivalent thereof) for purposes of the
risk-based capital adequacy guidelines of the Federal Reserve, as then in effect
and applicable to the Company; provided, however, that the distribution of the
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Securities in connection with the liquidation of a Central Fidelity Capital
Trust by the Company shall not in and of itself constitute a Capital Treatment
Event.
"Central Fidelity Capital Trust" has the meaning specified in the
first recital of this Indenture.
"Central Fidelity Guarantee" means the guarantee by the Company of the
distributions on the Trust Securities of a Central Fidelity Capital Trust to the
extent of the Guarantee Agreement.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or
if at any time under 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 on such date.
"Common Securities" has the meaning specified in the first recital
of this Indenture.
"Common Stock" means the common stock, $5.00 par value, of the
Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, the written
request or order signed in the name of the Company by the Chairman, Chief
Executive Officer, President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Controller, the Secretary or an Assistant Secretary of
the Company, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be administered,
which office
5
as of the date of this Indenture is located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇.
"Corporation" includes a corporation, association, company, joint-
stock company or business trust.
"Declaration of Trust" for each series of Securities has the meaning
specified in the Officers' Certificate for such series delivered pursuant to
Section 3.01 of this Indenture.
"Defaulted Interest" has the meaning specified in Section 3.08.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depositary by the Company pursuant to
Section 3.01 with respect to such series (or any successor thereto (a "Successor
Depositary")).
"Determination Date" has the meaning specified in Section 2.02.
"Discount Security" means any security which provides for an amount
less than the principal amount thereof to be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 5.02.
"Dollar" means the currency of the United States of America that, as
at the time of payment, is legal tender for the payment of public and private
debts.
"DTC" means The Depository Trust Company.
"Event of Default", unless otherwise specified in the supplemental
indenture creating a series of Securities, has the meaning specified in Article
V.
"Exchange Capital Securities" has the meaning specified in Section
12.01(a).
"Exchange Guarantee" has the meaning specified in Section 12.01(b).
"Exchange Offer Registration Statement" has the meaning specified in
Section 12.01(a).
"Exchange Securities" has the meaning specified in Section 12.01(a).
6
"Extension Period" has the meaning specified in Section 3.12.
"Federal Reserve" means the Board of Governors of the Federal
Reserve System.
"Foreign Currency" means any currency issued by the government of one
or more countries other than the United States of America or by any recognized
confederation or association of such governments.
"Global Security" means a Security in the form prescribed in Section
2.04 evidencing all or part of a series of Securities, issued to the Depositary
or its nominee for such series, and registered in the name of such Depositary or
its nominee.
"Guarantee Agreement" for each series of Securities has the meaning
specified in the Officers' Certificate for such series delivered pursuant to
Section 3.01 of this Indenture.
"Holder" means a Person in whose name a Security is registered in
the Securities Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of each particular series of Securities established
as contemplated by Section 3.01.
"Institutional Accredited Investor" means an accredited investor
within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act.
"Interest Payment Date" means as to each series of Securities the
Stated Maturity of an installment of interest on such Securities.
"Interest Rate" means the rate of interest specified or determined as
specified in each Security as being the rate of interest payable on such
Security.
"Junior Subordinated Payment" has the meaning specified in Section
14.02.
"LIBOR" has the meaning specified in Section 2.02.
"Lien" means any mortgage, pledge, lien, security interest or other
encumbrance.
7
"Liquidation Amount" has the meaning specified in Section 1.01 of
the Trust Agreement.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether as the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"1940 Act" means the Investment Company Act of 1940.
"Officers' Certificate" means a certificate signed by the Chairman and
Chief Executive Officer, President, or Vice President, and by the Treasurer, the
Controller, the Chief Financial Officer, the Secretary or any Assistant
Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company.
"Original Issue Date" means the date of issuance specified as such
in each Security.
"Other Debentures" means, with respect to any series of Securities,
all junior subordinated debt securities to be issued by the Company pursuant to
this Indenture, other than such series of Securities, with substantially similar
subordination terms, and which will be issued and sold (if at all) to any
Central Fidelity Capital Trust established by the Company (if any), and will be
unsecured and subordinate and junior in right of payment to the extent and to
the manner set forth in this Indenture to all Senior Debt of the Company.
"Other Guarantees" means, with respect to any series of Securities,
all guarantees (if any) to be issued by the Company with respect to Capital
Securities (if any) to be issued by any Central Fidelity Capital Trust to be
established by the Company (if any), other than the guarantee related to such
series of Securities.
"Outstanding" means, when used in reference to any Securities, as of
the date of determination, all Securities
8
theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancelation;
(ii) Securities for whose payment money in the necessary amount has
been theretofore deposited with the Trustee or any Paying Agent in trust
for the Holders of such Securities; and
(iii) Securities in substitution for or in lieu of which other
Securities have been authenticated and delivered or which have been paid
pursuant to Section 3.07, unless proof satisfactory to the Trustee is
presented that any such Securities are held by Holders in whose hands such
Securities are valid, binding and legal obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
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principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which a Responsible Officer actually knows to
be so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other obligor.
Upon the written request of the Trustee, the Company shall furnish the Trustee
promptly an Officers' Certificate listing and identifying all Securities, if
any, known by the Company to be owned or held by or for the account of the
Company, or any other obligor on the Securities or any Affiliate of the Company
or such obligor, and, subject to the provisions of Section 6.01, the Trustee
shall be entitled to accept such Officers' Certificate as conclusive evidence of
the facts therein set forth and of the fact that all Securities not listed
therein are Outstanding for the purpose of any such determination.
"Paying Agent" means the Trustee or any Person authorized by the
Company to pay the principal of or interest on any Securities on behalf of the
Company.
9
"Person" means any individual, Corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment" means, with respect to the Securities of any
series, the place or places where the principal of and interest on the
Securities of such series are payable pursuant to Sections 3.01 and 3.08.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any security
authenticated and delivered under Section 3.07 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
"Proceeding" has the meaning specified in Section 14.02.
"Property Trustee" means, in respect of any Central Fidelity Capital
Trust, the commercial bank or trust company identified as the "Property Trustee"
in the related Trust Agreement, solely in its capacity as Property Trustee of
such Central Fidelity Capital Trust under each Trust Agreement and not in its
individual capacity, or its successor in interest in such capacity, or any
successor property trustee appointed as therein provided.
"Redemption Date", when used with respect to any Security of a series
to be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Registration Agreement" has the meaning specified in Section 12.01.
"Regular Record Date" for the interest payable on any Interest Payment
Date with respect to the Securities of a series means, unless otherwise provided
pursuant to Section 3.01 with respect to Securities of a series, the date which
is the Business Day next preceding such Interest Payment Date.
"Responsible Officer", when used with respect to the Trustee means any
officer assigned to the Corporate Trust Office, including any managing director,
vice president, assistant vice president, assistant treasurer, assistant
secretary or any other officer of the Trustee customarily performing functions
similar to those performed
10
by any of the above designated officers and having direct responsibility for the
administration of this 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.
"Restricted Security" means each Security required pursuant to Section
3.06(c) hereof to bear a Restricted Securities Legend.
"Restricted Securities Certificate" means a certificate substantially
in the form set forth in Exhibit A to this Indenture.
"Restricted Securities Legend" means a legend substantially in the
form of the legend required in the form of Security set forth in Section 2.02 to
be placed on a Restricted Security.
"Reuters Page LIBO" has the meaning specified in Section 2.02.
"Securities" or "Security" means any debt securities or debt security,
as the case may be, authenticated and delivered under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Certificate" means a certificate evidencing ownership of
Securities.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 3.06.
"Senior Debt" with respect to any series of Securities means (a) the
principal of, and premium, if any, and interest on all indebtedness of the
Company for money borrowed, whether outstanding on the date of execution of this
Indenture or thereafter created, assumed or incurred, (b) all obligations to
make payment pursuant to the terms of financial instruments, such as (i)
securities contracts and foreign currency exchange contracts, (ii) derivative
instruments, such as swap agreements (including interest rate and foreign
exchange note swap agreements), cap agreements, floor agreements, collar
agreements, interest rate agreements, foreign exchange agreements, options,
commodity futures contracts and commodity options contracts, and (iii) similar
financial instruments; except, in the case of both (a) and (b) above, such
indebtedness and obligations that are expressly stated to rank junior in right
of payment
11
to, or pari passu in right of payment with, the Securities, (c) and indebtedness
----------
or obligations of other of the kind described in both (a) and (b) above for the
payment of which the Company is responsible or liable as guarantor or otherwise,
and (d) any deferrals, renewals or extensions of any such Senior Debt; provided,
--------
however, that Senior Debt shall not be deemed to include (a) any debt of the
-------
Company which, when incurred and without respect to any election under
Section 1111(b) of the U.S. Bankruptcy Code of 1978, as amended, was without
recourse to the Company; (b) any debt of the Company to any of its Subsidiaries;
(c) debt to any employee of the Company; (d) debt which by its terms is
subordinated to trade accounts payable or accrued liabilities arising in the
ordinary course of business to the extent that payments made to the holders of
such debt by the Holders as a result of the subordination provisions of this
Indenture would be greater than such payments otherwise would have been as a
result of any obligation of such holders of such debt to pay amounts over to the
obligees on such trade accounts payable or accrued liabilities arising in the
ordinary course of business as a result of the subordination provisions to which
such debt is subject; (e) trade accounts payable or accrued liabilities arising
in the ordinary course of business; and (f) any other debt securities issued
pursuant to this Indenture.
"Shelf Registration Statement" has the meaning specified in
Section 12.02.
"Special Interest" has the meaning specified in Section 12.03.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.08.
"Stated Maturity" when used with respect to any Security or any
installment of principal thereof or interest thereon means the date specified
pursuant to the terms of such Security as the date on which the principal of
such Security or such installment of interest is due and payable, in the case of
such principal, as such date may be shortened or extended as provided pursuant
to the terms of such Security and this Indenture.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For purposes of this definition, "voting stock" means stock which
ordinarily has voting power for the
12
election of directors, whether at all times or only so long as no senior class
of stock has such voting power by reason of any contingency.
"Successor Security" of any particular Security means every Security
issued after, and evidencing all or a portion of the same debt as that evidenced
by, such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.07 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Successor Trustee" has the meaning specified in the definition of
"Trustee" in this Section 1.01.
"Tax Event" means the receipt by the Trust or the Company of an
opinion of a nationally recognized independent tax counsel to the Company
experienced in such matters to the effect that, as a result of (a) 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, (b) any judicial decision or official
administrative pronouncement, ruling, regulatory procedure, notice or
announcement, including any notice or announcement of intent to adopt such
procedures or regulations (an "Administrative Action") or (c) any amendment to
or change in the administrative position or interpretation of any Administrative
Action or judicial decision that differs from the theretofore generally accepted
position, in each case, by any legislative body, court, governmental agency or
regulatory body, irrespective of the manner in which such amendment or change is
made known, which amendment or change is effective or such Administrative Action
or decision is announced, in each case, on or after the date of the Original
Issue Date of the applicable series of Securities or the issue date of the
applicable Capital Securities issued by the affected Central Fidelity Capital
Trust, there is more than an insubstantial risk that (x) if the Securities are
held by or on behalf of the affected Central Fidelity Capital Trust, (i) the
Trust is, or will be within 90 days of the date of such opinion, subject to
United States federal income tax with respect to interest accrued or received on
the Securities or subject to more than a de minimis amount of other taxes,
----------
duties or other governmental charges as determined by such counsel, or (ii) any
portion of interest payable by the Company to the affected Central Fidelity
Capital Trust on the Securities is not, or within 90 days of the date of such
opinion will not
13
be, deductible by the Company in whole or in part for United States federal
income tax purposes or (y) with respect to Securities which are no longer held
by or on behalf of the affected Central Fidelity Capital Trust, any portion of
interest payable by the Company on the Securities is not, or within 90 days of
the date of such opinion will not be, deductible by the Company in whole or in
part for United States federal income tax purposes.
"Trust Agreement" with respect to each series of Securities means the
Declaration of Trust with respect to such series, as amended by the Amended and
Restated Declaration of Trust with respect to such series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 (15 U.S.C.
(S)(S) 77aaa-77bbbb), as in effect on the date of this Indenture, except as
provided in Sections 1.07 and 9.05.
"Trust Securities" has the meaning specified in the first recital of
this Indenture.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee (a "Successor Trustee")
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Trustee" shall mean or include each Person who is then a Trustee
hereunder and, if at any time there is more than one such Person, "Trustee" as
used with respect to the Securities of any series shall mean the Trustee with
respect to Securities of that series.
"Vice President", when used with respect to the Company, means any
duly appointed vice president, whether or not designated by a number or a word
or words added before or after the title "vice president".
SECTION 1.02. Compliance Certificate and Opinions. Upon any
------------------------------------
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent (including covenants
compliance with which constitutes a condition precedent), if any, provided for
in this Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel that all such
conditions precedent (including covenants compliance with which constitute a
condition precedent), if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any
14
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than the
certificates provided regarding conditions or covenants waived by the Holders
pursuant to Section 10.05) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 1.03. Forms of Documents Delivered to Trustee. In any case
----------------------------------------
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representation
with respect to matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer
15
or officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel knows,
or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions, or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Holders. (a) Any request, demand,
----------------
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given to 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
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments is or are delivered to the Trustee, and, where it
is hereby expressly required, to the Company. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and (subject to
Section 6.01) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any 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 Person acting in other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority.
(c) The fact and date of the execution by any Person of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient and in
accordance with such reasonable rules as the Trustee may determine.
16
(d) The ownership of Securities shall be proved by the Securities
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done or suffered to be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Security.
(f) The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to take any action under
this Indenture by vote or consent. Except as otherwise provided herein, such
record date shall be the later of 30 days prior to the first solicitation of
such consent or vote or the date of the most recent list of Securityholders
furnished to the Trustee pursuant to Section 7.01 prior to such solicitation.
If a record date is fixed, those persons who were Securityholders at such record
date (or their duly designated proxies), and only those persons, shall be
entitled to take such action by vote or consent or to revoke any vote or consent
previously given, whether or not such persons continue to be Holders after such
record date, provided, however, that unless such vote or consent is obtained
-------- -------
from the Holders (or their duly designated proxies) of the requisite principal
amount of Outstanding Securities prior to the date which is the 120th day after
such record date, any such vote or consent previously given shall automatically
and without further action by any Holder be canceled and of no further effect.
SECTION 1.05. Notices, Etc. to Trustee and Company. Any request,
-------------------------------------
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with:
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose (except as otherwise provided in Section 5.01 hereof)
hereunder if in writing and mailed, first class, postage prepaid, to the
Company addressed to it at the address of its principal office specified in
the first paragraph of
17
this instrument or at any other address previously furnished in writing to
the Trustee by the Company.
SECTION 1.06. Notice to Holders; Waiver. Where this Indenture
--------------------------
provides for notice to Holders of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed,
first class postage prepaid, to each Holder affected by such event, at the
address of such Holder as it appears in the Securities Register, not later than
the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. In case, by reason of the suspension of or
irregularities in regular mail service or for any other reason, it shall be
impossible or impracticable to mail notice of any event to Holders when said
notice is required to be given pursuant to any provision of this Indenture or of
the relevant Securities, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice. Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 1.07. Conflict with Trust Indenture Act. This Indenture will
----------------------------------
not be qualified under the Trust Indenture Act except upon the effectiveness of
a registration statement as contemplated in Article XII hereof. If any
provision of this Indenture limits, qualifies or conflicts with the duties
imposed by any of Section 310 to 317, inclusive, of the Trust Indenture Act
through operation of Section 318(c) thereof, such imposed duties shall control.
SECTION 1.08. Effect of Headings and Table of Contents. The Article
-----------------------------------------
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 1.09. Successors and Assigns. All covenants and agreements
-----------------------
in this Indenture by the Company shall bind its successors and assigns, whether
so expressed or not.
18
SECTION 1.10. Separability Clause. In case any provision in this
--------------------
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality or enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.11. Benefits of Indenture. Nothing in this Indenture or in
----------------------
the Securities, express or implied, shall give to any Person, other than the
parties hereto, any Paying Agent and their successors and assigns, the holders
of Senior Debt and the Holders of the Securities, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 1.12. Governing Law. This Indenture and the Securities shall
--------------
be governed by and construed in accordance with the laws of the State of New
York, without regard to principles of conflicts of laws.
SECTION 1.13. Non-Business Days. In any case where any Interest
------------------
Payment Date, Redemption Date or Stated Maturity of any Security shall not be a
Business Day, then (notwithstanding any other provision of this Indenture or the
Securities) payment of interest or principal need not be made on such date, but
may be made on the next succeeding Business Day (and no interest shall accrue
for the period from and after such Interest Payment Date, Redemption Date or
Stated Maturity, as the case may be, until such next succeeding Business Day)
except that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on the Interest Payment Date or
Redemption Date or at the Stated Maturity, as the case may be.
ARTICLE II
Security Forms
--------------
SECTION 2.01. Forms Generally. The Securities of each series and the
----------------
Trustee's certificate of authentication shall be in substantially the forms set
forth in this Article, or in such other form or forms as shall be established by
or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with applicable tax
19
laws or the rules of any securities exchange or as may, consistently herewith,
be determined by the officers executing such securities, as evidenced by their
execution of the Securities. If the form of Securities of any series is
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 3.03 with respect to
the authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved
or produced by any combination of these methods, if required by any securities
exchange on which the Securities may be listed, on a steel engraved border or
steel engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange on which the Securities may be listed, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
Securities distributed to holders of book-entry Capital Securities
shall be distributed in the form of one or more Global Securities registered in
the name of a Depositary or its nominee, and deposited with the Securities
Registrar, as custodian for such Depositary, or held by such Depositary for
credit by the Depositary to the respective accounts of the beneficial owners of
the Securities represented thereby (or such other accounts they may direct).
Securities distributed to holders of Capital Securities other than book-entry
Capital Securities shall not be issued in the form of a Global Security or any
other form intended to facilitate book-entry trading in beneficial interests in
such Securities.
SECTION 2.02. Form of Face of Security.
-------------------------
[If this Security is a Restricted Security, insert--THIS SECURITY HAS
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT") OR
ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS
SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS
ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY
PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH CENTRAL FIDELITY BANKS, INC. (THE
20
"COMPANY") OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR
ANY PREDECESSOR OF THIS SECURITY) (THE "RESALE RESTRICTIONS TERMINATION DATE")
ONLY (A) TO THE COMPANY, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON
IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES
ACT ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW
TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF
THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND
THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM IN
ACCORDANCE WITH THE AMENDED AND RESTATED DECLARATION OF TRUST, A COPY OF WHICH
MAY BE OBTAINED FROM THE COMPANY OR THE TRUSTEE. THIS LEGEND WILL BE REMOVED
UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTIONS TERMINATION DATE.]
CENTRAL FIDELITY BANKS, INC.
(Title of Security)
CUSIP
No. $
CENTRAL FIDELITY BANKS, INC., a corporation organized and existing
under the laws of the Commonwealth of Virginia (hereinafter called the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to ,
or its registered assigns, the principal sum of Dollars on
(the "Stated Maturity"). The Company further promises to pay interest on said
principal sum from , or from the most recent interest payment date
(each such date, an "Interest Payment Date") on which interest has been paid or
duly provided for, [monthly] [quarterly] [semi-annually] [annually] [if
applicable, insert--(subject to deferral as set forth herein)], in arrears on
[insert applicable Interest Payment Dates] of each year, commencing ,
----------------------------------------
, at a variable annual rate equal to LIBOR plus [ ]%, until the
principal hereof shall have become due and
21
payable, [if applicable, insert--plus Additional Interest, if any,] until the
principal hereof is paid or duly provided for or made available for payment [if
applicable, insert--and on any overdue principal and (without duplication and to
the extent that payment of such interest is enforceable under applicable law) on
any overdue installment of interest at a variable annual rate equal to LIBOR
plus [ ]% compounded [monthly] [quarterly] [semi-annually] [annually] as
Additional Interest].
The Calculation Agent will calculate the interest rate for each
[monthly] [quarterly] [semi-annual] [annual] interest period based on LIBOR
determined as of two London Business Days (defined as any day, other than a
Saturday or Sunday, on which banks are open for business in London) prior to the
first day of such interest period (each, a "Determination Date"). "LIBOR"
means, with respect to a [monthly] [quarterly] [semi-annual] [annual] interest
period relating to an Interest Payment Date (in the following order of
priority): (i) the rate (expressed as a percentage per annum) for Eurodollar
deposits having a three-month maturity that appears on Telerate Page 3750 as of
11:00 a.m. (London time) on the related Determination Date; (ii) if such rate
does not appear on Telerate Page 3750 as of 11:00 a.m. (London time) on the
related Determination Date, LIBOR will be the arithmetic mean (if necessary
rounded upwards to the nearest whole multiple of .00001%) of the rates
(expressed as percentages per annum) for Eurodollar deposits having a three-
month maturity that appear on Reuters Monitor Money Rates Page LIBO ("Reuters
Page LIBO") as of 11:00 a.m. (London time) on such Determination Date; (iii) if
such rate does not appear on Reuters Page LIBO as of 11:00 a.m. (London time) on
the related Determination Date, the Calculation Agent will request the principal
London offices of four leading banks in the London interbank market to provide
such banks' offered quotations (expressed as percentages per annum) to prime
banks in the London interbank market for Eurodollar deposits having a three-
month maturity as of 11:00 a.m. (London time) on such Determination Date. If at
least two quotations are provided, LIBOR will be the arithmetic mean (if
necessary rounded upwards to the nearest whole multiple of .00001%) of such
quotations; (iv) if fewer than two such quotations are provided as requested in
clause (iii) above, the Calculation Agent will request four major New York City
banks to provide such banks' offered quotations (expressed as percentages per
annum) to leading European banks for loans in Eurodollars as of 11:00 a.m.
(London time) on such Determination Date; provided that, if at least two such
-------- ----
quotations are provided, LIBOR will be the arithmetic mean (if necessary rounded
upwards to the nearest whole multiple of .00001%) of such
22
quotations; and (v) if fewer than two such quotations are provided as requested
in clause (iv) above, LIBOR will be LIBOR determined with respect to the
interest period immediately preceding such current interest period.
If the rate for Eurodollar deposits having a three-month maturity that
initially appears on Telerate Page 3750 or Reuters Page LIBO, as the case may
be, as of 11:00 a.m. (London time) on the related Determination Date is
superseded on Telerate Page 3750 or Reuters Page LIBO, as the case may be, by a
corrected rate before 12:00 noon (London time) on such Determination Date, the
corrected rate as so substituted on the applicable page will be the applicable
LIBOR for such Determination Date.
LIBOR for the initial interest period (commencing upon the original
issuance of the Securities) shall be determined as provided above. Absent
manifest error, the Calculation Agent's determination of LIBOR and its
calculation of the applicable interest rate for each interest period will be
final and binding. Investors may obtain the interest rates for the current and
preceding interest period by writing or calling the office of Corporate Trust
Administration at the Calculation Agent at The Bank of New York, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
The amount of interest payable for any period shall be computed on the
basis of the actual number of days elapsed in a year of twelve 30-day months;
except that the amount of interest payable for any partial period shall be
computed on the basis of the actual number of days elapsed in a 360-day year.
In the event that any date on which interest is payable on this Security is not
a Business Day, then payment of the interest 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 is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case] with the same force and effect
as if made on the date the payment was originally payable. A "Business Day"
------------
shall mean any day other than (i) a Saturday or Sunday, (ii) a day on which
banking institutions in The City of New York are authorized or required by law
or executive order to remain closed or (iii) a day on which the Corporate Trust
Office of the Trustee or the Corporate Trust Office of the Property Trustee
under the Trust Agreement hereinafter referred to for Central Fidelity Capital
Trust is closed for business. The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
23
provided in the Indenture, be paid to the Person in whose name this Security (or
one or more Predecessor Securities, as defined in the Indenture) is registered
at the close of business on the Regular Record Date for such interest
installment, which shall be the [insert definition of Regular Record Dates].
-----------------------------------------
Any such interest installment not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture.
[If applicable, insert--So long as no Event of Default has occurred
and is continuing, the Company shall have the right at any time during the term
of this Security, from time to time, to defer payment of interest on such
Security for up to consecutive [monthly] [quarterly] [semi-annual] [annual]
interest payment periods with respect to each deferral period (each an
"Extension Period"), during which Extension Periods the Company shall have the
-----------------
right to make partial payments of interest on any Interest Payment Date, and at
the end of which the Company shall pay all interest then accrued and unpaid on
the Securities (together with Additional Interest thereon to the extent
permitted by applicable law); provided, however, that no Extension Period may
-------- -------
extend beyond the Stated Maturity of this Security. During any such Extension
Period, the Company may not (i) declare or pay any dividends or distributions,
on or redeem, purchase, acquire or make a liquidation payment with respect to,
any of the Company's capital stock (which includes common and preferred stock)
or (ii) make any payment of principal of, interest or premium, if any, on or
repay, repurchase or redeem any debt securities of the Company (including any
Other Debentures) that rank pari passu with or junior in interest to this
---- -----
Security or (iii) make any guarantee payments with respect to any guarantee by
the Company of the debt securities of any Subsidiary of the Company (including
Other Guarantees) if such guarantee ranks pari passu with or junior in interest
---- -----
to this Security (other than (a) dividends or distributions in Common Stock of
the Company, (b) any declaration of a dividend in connection with the
implementation of a stockholders' rights plan, or the issuance of stock under
24
any such plan in the future, or the redemption or repurchase of any such rights
pursuant thereto, (c) payments under the applicable Central Fidelity Guarantee,
(d) purchases or acquisitions of shares of the Company's Common Stock in
connection with the satisfaction by the Company of its obligations under any
employee benefit plan or other contractual obligation of the Company (other than
a contractual obligation ranking pari passu with or junior to these Securities),
---- -----
(e) as a result of a reclassification of the Company's capital stock or the
exchange or conversion of one class or series of the Company's capital stock for
another class or series of the Company's capital stock or (f) the purchase of
fractional interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged). Prior to the termination of any such Extension Period,
the Company may further extend such Extension Period, provided, however, that
-------- -------
such extension does not cause such Extension Period to exceed consecutive
[monthly] [quarterly] [semi-annual] [annual] interest payment periods or extend
beyond the Stated Maturity of this Security. Upon the termination of any such
Extension Period and the payment of all accrued and unpaid interest and any
Additional Interest then due, and, subject to the foregoing limitations, the
Company may elect to begin a new Extension Period. No interest shall be due and
payable during an Extension Period except at the end thereof. The Company shall
give the Trustee notice of its election to begin any Extension Period at least
three Business Days prior to the Interest Payment Date, [if applicable, insert--
or, with respect to the Securities issued to a Central Fidelity Capital Trust,
prior to the earlier of (i) the date the Distributions on the Capital Securities
would have been payable except for the election to begin or extend such
Extension Period or (ii) the date the Administrative Trustees are required to
give notice to any automated quotation system or to holders of such Capital
Securities of the record date or the date such Distributions are payable, but in
any event not less than three Business Days prior to such record date]. There is
no limitation on the number of times the Company may elect to begin an Extension
Period.
Payment of the principal of and interest on this Security will be made
at the office or agency of the Trustee in The City of New York or at the office
of such Paying Agents in the United States as the Company may designate from
time to time, in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts [if
applicable, insert--; provided, however, that at the option of the
-------- -------
25
Company payment of any interest may be made (except in the case of Securities in
Global form) (i) by check mailed to the address of the Person entitled thereto
as such address shall appear in the Securities Register or (ii) by wire transfer
in immediately available funds at such place and to such account as may be
designated by the Person entitled thereto as specified in the Securities
Register].
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and junior in right of payment to the prior
payment in full of all Senior Debt, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Security,
by accepting the same, (a) agrees to and shall be bound by such provisions,
(b) authorizes and directs the Trustee on his behalf to take such actions as may
be necessary or appropriate to effectuate the subordination so provided and
(c) appoints the Trustee his attorney-in-fact for any and all such purposes.
Each Holder hereof, by his acceptance hereof, waives all notice of the
acceptance of the subordination provisions contained herein and in the Indenture
by each holder of Senior Debt, whether now outstanding or hereinafter incurred,
and waives reliance by each such holder upon said provisions.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be
26
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Date: CENTRAL FIDELITY BANKS, INC.,
[Seal]
by
-----------------------------
[Chairman and Chief
Executive Officer,
President or
Vice President]
Attest:
----------------------------
[Secretary or Assistant
Secretary]
SECTION 2.03. Form of Reverse of Security. This Security is one of a
----------------------------
duly authorized issue of securities of the Company (herein called the
"Securities"), issued and to be issued in one or more series under a Junior
-----------
Subordinated Indenture, dated as of April 23, 1997, as supplemented by an
Officers' Certificate dated as of , (herein called the "Indenture"),
---------
between the Company and The Bank of New York, as Trustee (herein called the
"Trustee", which term includes any Successor Trustee under the Indenture), to
--------
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Trustee, the Company and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof[, limited in aggregate principal amount to $ ].
All terms used in this Security that are defined in the Indenture [if
applicable, insert--and in the Amended and Restated Declaration of Trust of
[insert the applicable Central Fidelity Capital Trust ], dated as of [ , ]
as amended (the "Amended and Restated Declaration of Trust"), among Central
Fidelity Banks, Inc., as Depositor, and the Trustees named therein,] shall have
the meanings assigned to them in the Indenture or, to the extent not
27
defined in the Indenture, the Amended and Restated Declaration of Trust, as the
case may be.
[If applicable, insert--On or after , the Company may at any
time, at its option, subject to the terms and conditions of Article XI of the
Indenture and subject to the Company having received prior approval of the
Federal Reserve if then required under applicable capital guidelines or policies
of the Federal Reserve, redeem this Security in whole or in part at any time or
from time to time prior to the Stated Maturity, at 100% of the aggregate
principal amount hereof, plus accrued and unpaid interest to the redemption
date.
[If applicable, insert--If a Tax Event or a Capital Treatment Event
shall occur and be continuing, the Company may, at its option and subject to
receipt of prior approval of the Federal Reserve if then required under
applicable capital guidelines or policies of the Federal Reserve and subject to
the provisions of Article XI of the Indenture, redeem the Securities in whole,
but not in part, prior to [ , ] and within 90 days after the
occurrence of such Tax Event or Capital Treatment Event, upon not less than 30
nor more than 60 days' notice, at 100% of the aggregate principal amount hereof,
plus accrued and unpaid interest to the redemption date.]
In the event of redemption of this Security in part only, a new
Security or Securities of this series for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancelation hereof.
[If the Security is not a Discount Security,--If an Event of Default
------------------------------------------
with respect to Securities of this series shall occur and be continuing, the
principal of this Security may be declared due and payable in the manner, with
the effect and subject to the conditions provided in the Indenture].
[If the Security is a Discount Security,--If an Event of Default with
--------------------------------------
respect to Securities of this series shall occur and be continuing, an amount of
principal of this Security may be declared due and payable in the manner, with
the effect and subject to the conditions provided in the Indenture. Such amount
shall be equal to [--insert formula for determining the amount]. Upon payment
------------------------------------------
(i) of the amount of principal so declared due and payable and (ii) of interest
on any overdue principal and overdue interest (in each case to the extent that
the payment of such interest shall be legally enforceable), all of the Company's
obligations in respect of the payment of the
28
principal of and interest, if any, on this Security shall terminate.]
The Indenture permits, with certain exceptions as therein provided,
the Company and the Trustee at any time to enter into a supplemental indenture
or indentures for the purpose of modifying in any manner the rights and
obligations of the Company and of the Holders of the Securities, with the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series to be affected by such supplemental
indenture. The Indenture also contains provisions permitting Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
[If the Security is not a Discount Security,--As provided in and
------------------------------------------
subject to the provisions of the Indenture, if an Event of Default with respect
to the Securities of this series at the time Outstanding occurs and is
continuing, then and in every such case the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Outstanding Securities of this
series may declare the principal amount of all the Securities of this series to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), provided, however, that, in the case of the
-------- -------
Securities of this series issued to a Central Fidelity Capital Trust, if upon an
Event of Default, the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Outstanding Securities of this series fails to declare
the principal of all the Securities of this series to be immediately due and
payable, the holders of at least 25% in aggregate Liquidation Amount of the
corresponding series of Capital Securities then outstanding shall have such
right by a notice in writing to the Company and the Trustee with a copy to the
Property Trustee. The Holders of a majority in aggregate principal amount of the
Outstanding Securities of this series may annul such declaration and waive the
default by written notice to the Property Trustee, the Company and the Trustee
if the default (other than the non-payment of the principal of these Securities
which has become due solely by such
29
acceleration) 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 Trustee. Should the Holders of these Securities of this
series fail to annul such declaration and waive such default, the holders of a
majority in aggregate Liquidation Amount of the Capital Securities shall have
such right. Upon any such declaration of such principal amount and the accrued
interest (including any Additional Interest) on all the Securities of this
series shall become immediately due and payable, provided that the payment of
principal and interest (including any Additional Interest) on such Securities
shall remain subordinated to the extent provided in Article XIV of the
Indenture.]
[If the Security is a Discount Security,--As provided in and subject
--------------------------------------
to the provisions of the Indenture, if an Event of Default with respect to the
Securities of this series at the time Outstanding occurs and is continuing, then
and in every such case the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Outstanding Securities of this series may
declare such portion of the principal amount as may be specified in the terms of
this series of all the Securities of this series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), provided that, in the case of the Securities of this series issued
--------
to a Central Fidelity Capital Trust, if upon an Event of Default, the Trustee or
the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of this series fails to declare the principal of all the
Securities of this series to be immediately due and payable, the holders of at
least 25% in aggregate Liquidation Amount of the corresponding series of Capital
Securities then outstanding shall have such right by a notice in writing to the
Company and the Trustee with a copy to the Property Trustee. The Holders of a
majority in aggregate principal amount of the Outstanding Securities of this
series may annul such declaration and waive the default by written notice to the
Property Trustee, the Company and the Trustee if the default (other than the
non-payment of the principal of these Securities which has become due solely by
such acceleration) 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 Trustee. Should the Holders of these Securities of this
series fail to annul such declaration and waive such default, the holders of a
majority in aggregate Liquidation Amount of the Capital Securities shall have
such right. Upon any such declaration of such principal amount and the accrued
interest (including any Additional Interest)
30
on all the Securities of this series shall become immediately due and payable,
provided that the payment of principal and interest (including any Additional
Interest) on such Securities shall remain subordinated to the extent provided in
Article XIV of the Indenture.]
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and interest on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the
Securities Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company maintained pursuant to Section
10.02 of the Indenture duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Securities Registrar
duly executed by, the Holder hereof or his attorney duly authorized in writing
and thereupon one or more new Securities of this series, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees. No service charge shall be made for any
such registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
shall treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Securities of this series are issuable only in registered form
without coupons in blocks having aggregate principal amounts of not less than
$100,000 (100 Securities) and any integral multiple of $1,000 in excess thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of such series of a different authorized denomination, as
requested by the Holder surrendering the same.
31
The Company and, by its acceptance of this Security or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, this Security intend that such Security constitute indebtedness and
agree to treat such Security as indebtedness for all United States Federal,
state and local tax purposes.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF
LAWS PRINCIPLES THEREOF.
SECTION 2.04. Additional Provisions Required in Global Security. Any
--------------------------------------------------
Global Security issued hereunder shall, in addition to the provisions contained
in Sections 2.02 and 2.03, bear a legend in substantially the following form:
"This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of The Depository
Trust Company (the "Depositary") or a nominee of the Depositary. This
Security is exchangeable for Securities registered in the name of a person
other than the Depositary or its nominee only in the limited circumstances
described in the Indenture and no transfer of this Security (other than a
transfer of this Security as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary) may be registered except in limited
circumstances.
Unless this Security is presented by an authorized representative of The
Depository Trust Company (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇) to Central Fidelity
Banks, Inc. or its agent for registration of transfer, exchange or payment,
and any Security issued is registered in the name of Cede & Co. or such
other name as requested by an authorized representative of The Depository
Trust Company and any payment hereon is made to Cede & Co., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an interest
herein."
32
SECTION 2.05. Form of Trustee's Certificate of Authentication. This
------------------------------------------------
is one of the Securities referred to in the within mentioned Indenture:
-------------------------------
as Trustee
Dated:
By:
----------------------------
Authorized Signatory
ARTICLE III
The Securities
--------------
SECTION 3.01. Title and Terms. The aggregate principal amount of
----------------
Securities which may be authenticated and delivered under this Indenture is
unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of a series:
(a) the title of the securities of such series, which shall
distinguish the Securities of the series from all other Securities;
(b) the limit, if any, upon the aggregate principal amount of the
Securities of such series which may be authenticated and made available
for delivery under this Indenture (except for Securities authenticated and
made available for delivery upon registration of, transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant to
Section 3.04, 3.06, 3.07, 9.06 or 11.06); provided, however, that the
-------- -------
authorized aggregate principal amount of such series may be increased
above such amount by a Board Resolution to such effect;
(c) the Stated Maturity or Maturities on which the principal of the
Securities of such series is payable or the method of determination
thereof;
(d) the rate or rates, if any, at which the Securities of such series
shall bear interest, if any, the rate or rates and extent to which
Additional Interest, if any, shall be payable in respect of any
33
Securities of such series, the Interest Payment Dates on which such
interest shall be payable, the right, pursuant to Section 3.12 or as
otherwise set forth therein, of the Company to defer or extend an Interest
Payment Date, and the Regular Record Date for the interest payable on any
Interest Payment Date or the method by which any of the foregoing shall be
determined;
(e) the place or places where the principal of and interest on the
Securities of such series shall be payable, the place or places where the
Securities of such series may be presented for registration of transfer or
exchange, and the place or places where notices and demands to or upon the
Company in respect of the Securities of such series may be made;
(f) the period or periods within or the date or dates on which, if
any, the price or prices at which and the terms and conditions upon which
the Securities of such series may be redeemed, in whole or in part, at the
option of the Company;
(g) the obligation or the right, if any, of the Company to redeem,
repay or purchase the Securities of such series pursuant to any sinking
fund, amortization or analogous provisions, or at the option of a Holder
thereof, and the period or periods within which, the prices or prices at
which, the currency or currencies (including currency unit or units) in
which and the other terms and conditions upon which Securities of the
series shall be redeemed, repaid or purchased, in whole or in part,
pursuant to such obligations;
(h) the denominations in which any Securities of such series shall be
issuable, if other than in blocks having aggregate principal amounts of not
less than $100,000 (100 Securities) and integral multiples of $1,000 in
excess thereof;
(i) if other than Dollars, the currency or currencies (including
currency unit or units) in which the principal of and interest, if any, on
the Securities of the series shall be payable, or in which the Securities
of the series shall be denominated and the manner of determining the
equivalent thereof in Dollars for purposes of the definition of the term
"Outstanding";
(j) the additions, modifications or deletions, if any, in the Events
of Default or covenants of the
34
Company set forth herein with respect to the Securities of such series;
(k) if other than the principal amount thereof, the portion of the
principal amount of Securities of such series that shall be payable upon
declaration of acceleration of the Maturity thereof;
(l) the additions or changes, if any, to this Indenture with respect
to the Securities of such series as shall be necessary to permit or
facilitate the issuance of the Securities of such series in bearer form,
registrable or not registrable as to principal, and with or without
interest coupons;
(m) any index or indices used to determine the amount of payments of
principal on the Securities of such series or the manner in which such
amounts will be determined;
(n) the issuance of a temporary Global Security representing all of
the Securities of such series and exchange of such temporary Global
Security for definitive Securities of such series;
(o) whether the Securities of the series shall be issued in whole or
in part in the form of one or more Global Securities and, in such case, the
Depositary for such Global Securities, which Depositary shall be a clearing
agency registered under the Securities Exchange Act of 1934;
(p) the appointment of any Paying Agent or Agents for the Securities
of such series;
(q) the terms of any right to convert or exchange Securities of such
series into any other securities or property of the Company, and the
additions or changes, if any, to this Indenture with respect to the
Securities of such series to permit or facilitate such conversion or
exchange;
(r) the transfer restrictions and legends required to be on the
Securities;
(s) the definitions of Amended and Restated Declaration of Trust,
Declaration of Trust and Guarantee Agreement for each series;
(t) the relative degree, if any, to which the Securities of the series
shall be senior to or be
35
subordinated to other series of Securities in right of payment, whether
such other series of Securities are Outstanding or not; and
(u) any other terms of the Securities of such series (which terms
shall not be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided herein or in
or pursuant to such Board Resolution and set forth in such Officers' Certificate
or in any such indenture supplemental hereto.
Unless otherwise provided with respect to the Securities of any
series, at the option of the Company, interest on the Securities of any series
that bears interest may be paid (except in the case of Securities in Global
form) (i) by check mailed to the address of the Person entitled thereto as such
address shall appear in the Securities Register or (ii) by wire transfer in
immediately available funds at such place and to such account as may be
designated by the Person entitled thereto as specified in the Securities
Register.
SECTION 3.02. Denominations. The Securities of each series shall be
--------------
in registered form without coupons and shall be issuable in blocks having
aggregate principal amounts of not less than $100,000 (100 Securities) and
integral multiples of $1,000 in excess thereof, unless otherwise specified as
contemplated by Section 3.01.
SECTION 3.03. Execution, Authentication, Delivery and Dating. The
-----------------------------------------------
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its President or one of its Vice Presidents under its corporate seal
reproduced or impressed thereon and attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities. At any time and from time to
time after the execution and delivery of this Indenture, the Company may deliver
Securities executed by the Company to the Trustee for authentication.
Securities may be
36
authenticated on original issuance from time to time and delivered pursuant to
such procedures acceptable to the Trustee ("Procedures") as may be specified
from time to time by Company Order. Procedures may authorize authentication and
delivery pursuant to oral instructions of the Company or a duly authorized
agent, which instructions shall be promptly confirmed in writing. The Trustee
shall authenticate and deliver such Securities in accordance with such
instructions and as provided in this Indenture.
Prior to the delivery of a Security in any such form to the Trustee
for authentication, the Company shall deliver to the Trustee the following:
(a) a Company Order requesting the Trustee's authentication and
delivery of all or a portion of the Securities of such series, and if less
than all, setting forth procedures for such authentication;
(b) the Board Resolution by or pursuant to which such form of Security
has been approved, and the Board Resolution, if any, by or pursuant to
which the terms of the Securities of such series have been approved, and,
if pursuant to a Board Resolution, an Officers' Certificate describing the
action taken;
(c) an Officers' Certificate dated the date such certificate is
delivered to the Trustee, stating that all conditions precedent provided
for in this Indenture relating to the authentication and delivery of
Securities in such form and with such terms have been complied with; and
(d) an Opinion of Counsel or Opinions of Counsel substantially to the
effect that (i) the form of such Securities has been duly authorized and
approved in conformity with the provisions of this Indenture; (ii) the
terms of such Securities have been duly authorized and determined in
conformity with the provisions of this Indenture, or, if such terms are to
be determined pursuant to Procedures, as defined above, when so determined
such terms shall have been duly authorized and determined in conformity
with the provisions of this Indenture; and (iii) Securities in such form
when completed by appropriate insertions and executed and delivered by the
Company to the Trustee for authentication in accordance with this
Indenture, authenticated and made available for delivery by the Trustee in
accordance with this Indenture within the authorization as to aggregate
principal amount established from time to time by the Board of Directors
37
and sold in the manner specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company entitled to
the benefits of this Indenture, subject to bankruptcy, reorganization,
insolvency, fraudulent transfer, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles and except as enforcement thereof may be limited by (A)
requirements that a claim with respect to any Securities denominated other
than in Dollars (or a Foreign Currency or currency unit judgment in respect
of such claim) be converted into Dollars at a rate of exchange prevailing
on a date determined pursuant to applicable law or (B) governmental
authority to limit, delay or prohibit the making of payments in Foreign
Currencies or currency units or payments outside the United States, and
subject to such other qualifications as such counsel shall conclude do not
materially affect the rights of Holders of such Securities.
The Trustee shall be entitled to receive the documents referred to in
clauses (b) and (d) above only at or prior to the first request of the Company
to the Trustee to authenticate Securities of such series.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture, or
be valid or obligatory for any purpose, unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by the manual signature of one of its authorized
officers, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and made
available for delivery hereunder.
SECTION 3.04. Temporary Securities. Pending the preparation of
---------------------
definitive Securities of any series, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
denomination, substantially of the tenor of the definitive Securities of such
series in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as evidenced by their execution of such Securities.
38
If temporary Securities of any series are issued, the Company will
cause definitive Securities of such series to be prepared without unreasonable
delay. After the preparation of definitive Securities, the temporary Securities
shall be exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for that purpose
without charge to the Holder. Upon surrender for cancelation of any one or more
temporary Securities, the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor a like
principal amount of definitive Securities of the same series of authorized
denominations having the same Original Issue Date and Stated Maturity and having
the same terms as such temporary Securities. Until so exchanged, the temporary
Securities shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities.
SECTION 3.05. Global Securities. (a) Each Global Security issued
------------------
under this Indenture shall be registered in the name of the Depositary
designated by the Company for such Global Security or a nominee thereof and
delivered to such Depositary or a nominee thereof or custodian therefor, and
each such Global Security shall constitute a single Security for all purposes of
this Indenture.
(b) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and no
transfer of a Global Security in whole or in part may be registered, in
the name of any Person other than the Depositary for such Global Security or a
nominee thereof unless (a) such Depositary advises the Trustee in writing that
such Depositary is no longer willing or able to continue as a Depositary with
respect to such Global Security, and no successor depositary shall have been
appointed, or if at any time the Depositary ceases to be a "clearing agency"
regestered under the Exchange Act, at a time when the Depositary is required to
be so registered to act as such depositary, (b) the Company in its sole
discretion determines that such Global Security shall be so exchangeable, (c)
there shall have occurred and be continuing an Event of Default or (d) pursuant
to the following sentence. All or any portion of a Global Security may be
exchanged for a Security that has a like aggregate principal amount and is not a
Global Security upon 20 days' prior request made by the Depositary or its Agent
Member to the Securities Registrar.
39
(c) If any Global Security is to be exchanged for other Securities or
canceled in whole, it shall be surrendered by or on behalf of the Depositary or
its nominee to the Securities Registrar for exchange or cancelation as provided
in this Article III. If any Global Security is to be exchanged for other
Securities or canceled in part, or if another Security is to be exchanged in
whole or in part for a beneficial interest in any Global Security, then either
(i) such Global Security shall be so surrendered for exchange or cancelation as
provided in this Article III or (ii) the principal amount thereof shall be
reduced, subject to Section 3.06(b)(iv), or increased by an amount equal to the
portion thereof to be so exchanged or canceled, or equal to the principal amount
of such other Security to be so exchanged for a beneficial interest therein, as
the case may be, by means of an appropriate adjustment made on the records of
the Securities Registrar, whereupon the Trustee shall instruct the Depositary or
its authorized representative to make a corresponding adjustment to its records.
Upon any such surrender or adjustment of a Global Security by the Depositary,
accompanied by registration instructions and, to the extent required by Section
3.06, a Restricted Securities Certificate, the Trustee shall, subject to Section
3.05(b) and as otherwise provided in this Article III, authenticate and make
available for delivery any Securities issuable in exchange for such Global
Security (or any portion thereof) in accordance with the instructions of the
Depositary. The 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.
(d) The Depositary or its nominee, as registered owner of a Global
Security, shall be the Holder of such Global Security for all purposes under
this Indenture and the Securities, and owners of beneficial interests in a
Global Security shall hold such interest pursuant to the rules and procedures of
the Depositary. Accordingly, any such owner's beneficial interests in a Global
Security shall be shown only on, and the transfer of such interest shall be
effected only through, records maintained by the Depositary or its nominee or
its Agent Members. Neither the Trustee nor the Securities Registrar shall have
any liability in respect of any transfers effected by the Depositary.
(e) The rights of the beneficial interests in a Global Security shall
be exercised only through the Depositary and shall be limited to those
established by law and agreements between such owners and the Depositary and/or
its Agent Members.
40
SECTION 3.06. Registration, Transfer and Exchange Generally; Certain
------------------------------------------------------
Transfers and Exchanges; Restricted Securities Legends. (a) The Company shall
-------------------------------------------------------
cause to be kept at the Corporate Trust Office of the Trustee a register in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of the Securities and of transfers of
Securities. Such register is herein sometimes referred to as the "Securities
Register". The Trustee is hereby appointed "Securities Registrar" for the
purpose of registering the Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security at the
office or agency of the Company designated for that purpose the Company shall
execute, and the Trustee shall authenticate and make available for delivery, in
the name of the designated transferee or transferees, one or more new Securities
of the same series of any authorized denominations, of a like aggregate
principal amount, of the same Original Issue Date and Stated Maturity and having
the same terms and bearing such restrictive legends as may be required by this
Indenture.
At the option of the Holder, Securities may be exchanged for other
Securities of the same series of any authorized denominations, of a like
aggregate principal amount, of the same Original Issue Date and Stated Maturity
and having the same terms and bearing such restrictive legends as may be
required by this Indenture, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and make available
for delivery, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any transfer or exchange of Securities
shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Every Security presented or surrendered for transfer or exchange shall
(if so required by the Company or the Securities Registrar) be duly endorsed, or
be accompanied by a written instrument of transfer in form satisfactory to the
Company and the Securities Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer or
exchange of Securities, but the Company may
41
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
Securities.
Neither the Company nor the Trustee shall be required, pursuant to the
provisions of this Section, (a) to issue, transfer or exchange any Security of
any series during a period beginning at the opening of business 15 days before
the day of mailing of a notice of redemption of Securities pursuant to Article
XI and ending at the close of business on the day of mailing of notice of
redemption or (b) to transfer or exchange any Security so selected for
redemption in whole or in part, except, in the case of any Security to be
redeemed in part, any portion thereof not to be redeemed.
(b) Certain Transfers and Exchanges. Notwithstanding any other
--------------------------------
provision of the Indenture, transfers and exchanges of Securities and beneficial
interests in a Global Capital Security of the kinds specified in this Section
3.06(b) shall be made only in accordance with this Section 3.06(b).
(i) Non-Global Security to Global Security. If the Holder of a
---------------------------------------
Security (other than a Global Security) wishes at any time to transfer all or
any portion of such Security to a Person who wishes to take delivery thereof in
the form of a beneficial interest in a Global Security, such transfer may be
effected only in accordance with the provisions of this clause (b)(i) and
subject to the rules and procedures of the Depositary. Upon receipt by the
Securities Registrar of (A) such Security as provided in Section 3.06(a) and
instructions satisfactory to the Securities Registrar directing that a
beneficial interest in the Global Security in a specified principal amount not
greater than the principal amount of such Security be credited to a specified
Agent Member's account and (B) a Securities Certificate duly executed by such
Holder or such Holder's attorney duly authorized in writing, then the Securities
Registrar shall cancel such Security (and issue a new Security in respect of the
untransferred portion thereof) as provided in Section 3.06(a) and increase the
aggregate principal amount of the Global Security by the specified principal
amount as provided in Section 3.05(c).
(ii) Non-Global Security to Non-Global Security. A Security that is
-------------------------------------------
not a Global Security may be transferred, in whole or in part, to a Person who
takes delivery in the form of another Security that is not a Global Security as
provided in Section 3.06(a); provided, that if such Security to be transferred
--------
in whole or in part is a Restricted
42
Security, the Securities Registrar shall have received a Restricted Securities
Certificate duly executed by the transferor Holder or such Holder's attorney
duly authorized in writing.
(iii) Exchanges between Global Security and Non-Global Security. A
----------------------------------------------------------
beneficial interest in a Global Security may be exchanged for a Security that is
not a Global Security as provided in Section 3.05.
(iv) Limitations Relating to Principal Amount. Notwithstanding any
-----------------------------------------
other provision of this Indenture and unless otherwise specified as permitted by
Section 3.01, Securities or portions thereof may be transferred or exchanged
only in principal amounts of not less than $100,000 (100 Securities) and
integral multiples of $1,000 in excess thereof. Any transfer, exchange or other
disposition of Securities in contravention of this Section 3.06(b)(iv) shall be
deemed to be void and of no legal effect whatsoever, any such transferee shall
be deemed not to be the Holder or owner of any beneficial interest in such
Securities for any purpose, including but not limited to the receipt of interest
payable on such Securities, and such transferee shall be deemed to have no
interest whatsoever in such Securities.
(c) Restricted Securities Legend. (i) Except as set forth below, all
-----------------------------
Securities shall bear a Restricted Securities Legend, substantially in the
following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
"SECURITIES ACT") OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR
ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS
SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER
OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH CENTRAL
FIDELITY BANKS, INC. (THE "COMPANY") OR ANY AFFILIATE OF THE COMPANY WAS
THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) (THE
"RESALE RESTRICTIONS TERMINATION DATE") ONLY (A) TO THE COMPANY, (B)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
(C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY
BELIEVES
43
IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER
TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF
SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT
ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A
VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT
TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
EACH OF THEM IN ACCORDANCE WITH THE AMENDED AND RESTATED DECLARATION OF
TRUST, A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY OR THE TRUSTEE.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE
RESTRICTIONS TERMINATION DATE.
(ii) Subject to Section 3.06(d) and to the following clauses of this
Section 3.06(c), a Security (other than a Global Security) that does not
bear a Restricted Securities Legend may be issued in exchange for or in
lieu of a Restricted Security or any portion thereof that bears such legend
if, in the Company's judgement, placing such a legend upon such new
Security is not necessary to ensure compliance with the registration
requirements of the Securities Act, and the Trustee, at the written
direction of the Company in the form of an Officers' Certificate, shall
countersign and deliver such a new Security as provided in this Article
III.
(iii) Notwithstanding the foregoing provisions of this Section
3.06(c), a successor Security of a Security that does not bear a Restricted
Securities Legend shall not bear such form of legend unless the Company has
reasonable cause to believe that such successor Security is a "restricted
security" within the meaning of Rule 144 under the Securities Act, in which
case the Trustee, at the written direction of the Company in the form of an
Officers' Certificate, shall countersign and deliver a new Security bearing
a Restricted Securities Legend in exchange for such successor Security as
provided in this Article III.
44
(iv) Upon any sale or transfer of a Restricted Security (including
any Restricted Security represented by a Global Security) pursuant to an
effective registration statement under the Securities Act or pursuant to
Rule 144 under the Securities Act after such registration ceases to be
effective: (A) in the case of any Restricted Security that is a definitive
Security, the Securities Registrar shall permit the Holder thereof to
exchange such Restricted Security for a definitive Security that does not
bear the Restricted Securities Legend and rescind any restriction on the
transfer of such Restricted Security; and (B) in the case of any Restricted
Security that is represented by a Global Security, the Securities Registrar
shall permit the Holder of such Global Security to exchange such Global
Security for another Global Security that does not bear the Restricted
Securities Legend.
(v) If Restricted Securities are being presented or surrendered for
transfer or exchange then there shall be (if so required by the Trustee),
(A) if such Restricted Securities are being delivered to the Securities
Registrar by a Holder for registration in the name of such Holder, without
transfer, a certification from such Holder to that effect; or (B) if such
Restricted Securities are being transferred, (i) a certification from the
transferor in a form substantially similar to that attached hereto as
Exhibit A, and (ii) if the Company or Securities Registrar so requests,
evidence reasonably satisfactory to them as to the compliance with the
restrictions set forth in the Restricted Securities Legend.
SECTION 3.07. Mutilated, Destroyed, Lost and Stolen Securities. If
-------------------------------------------------
any mutilated Security is surrendered to the Trustee together with such security
or indemnity as may be required by the Company or the Trustee to save each of
them harmless, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same issue and series of like
tenor and principal amount, having the same Original Issue Date and Stated
Maturity and bearing the same Interest Rate as such mutilated Security, and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security, and (ii) such security or indemnity as may be required by them to save
each of them harmless, then, in the absence of notice to the
45
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the issuing Company shall execute and upon its request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same issue and series of like tenor and
principal amount, having the same Original Issue Date and Stated Maturity and
bearing the same Interest Rate as such destroyed, lost or stolen Security, and
bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.08. Payment of Interest; Interest Rights Preserved.
-----------------------------------------------
Interest on any Security of any series which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date, shall be paid to the Person
in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest
in respect of Securities of such series, except that, unless otherwise provided
in the Securities of such series, interest payable on the Stated Maturity of a
Security shall be paid to the Person to whom principal is paid. The initial
payment of interest on any Security of any series which is issued between a
Regular Record Date and the related Interest Payment Date shall be payable as
provided in such Security or in the Board Resolution pursuant to
46
Section 3.01 with respect to the related series of Securities.
Any interest on any Security which is payable, but is not timely paid
or duly provided for, on any Interest Payment Date for Securities of such series
(herein called "Defaulted Interest"), shall forthwith cease to be payable to the
registered Holder on the relevant Regular Record Date by virtue of having been
such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities of such series in respect of which
interest is in default (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted Interest as
in this Clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall not be more than 15 days
and not less than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first class, postage prepaid, to each Holder of a
Security of such series at the address of such Holder as it appears in the
Securities Register not less than 10 days prior to such Special Record Date.
The Trustee may, in its discretion, in the name and at the expense of the
Company, cause a similar notice to be published at least once in a newspaper,
customarily published in the English language on each Business Day and of
general circulation in the Borough of Manhattan, The City of New York, but such
publication shall not be a condition precedent to the establishment of such
Special Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest
47
shall be paid to the Persons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered on such Special Record
Date and shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities of the series in respect of which interest is
in default may be listed and, upon such notice as may be required by such
exchange (or by the Trustee if the Securities are not listed), if, after notice
given by the Company to the Trustee of the proposed payment pursuant to this
Clause, such payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security. Any interest on any Security
which is deferred or extended pursuant to Section 3.12 shall not constitute
Defaulted Interest for purposes of this Section 3.08.
SECTION 3.09. Persons Deemed Owners. The Company, the Trustee and
----------------------
any agent of the Company or the Trustee may treat the Person in whose name any
Security is registered as the owner of such Security for the purpose of
receiving payment of principal of and (subject to Section 3.08) interest on such
Security and for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary. No holder of any
beneficial interest in any Global Security held on its behalf by a Depositary
shall have any rights under this Indenture with respect to such Global Security,
and such Depositary may be treated by the Company, the Trustee and any agent of
the Company or the Trustee as the owner of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Company or the Trustee from giving effect to any written certification, proxy,
or other authorization furnished by a Depositary or impair, as between the
Depositary and such holders of beneficial interests, the operation of customary
practices governing the exercise of the rights of the Depositary (or its
nominee) as Holder of any Security.
SECTION 3.10. Cancelation. All Securities surrendered for payment,
------------
redemption, transfer or exchange
48
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee, and any such Securities and Securities surrendered directly to the
Trustee for any such purpose shall be promptly canceled by it. The Company may
at any time deliver to the Trustee for cancelation any Securities previously
authenticated and made available for delivery hereunder which the Company may
have acquired in any manner whatsoever, and all Securities so delivered shall
be promptly canceled by the Trustee. No Securities shall be authenticated in
lieu of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Securities shall
be delivered to the Company.
SECTION 3.11. Computation of Interest. Except as otherwise specified
------------------------
as contemplated by Section 3.01 for Securities of any series, interest on the
Securities of each series for any period shall be computed on the basis of a
360-day year of twelve 30-day months and interest on the Securities of each
series for any partial period shall be computed on the basis of the number of
days elapsed in a 360-day year of twelve 30-day months.
SECTION 3.12. Deferrals of Interest Payment Dates. If specified as
------------------------------------
contemplated by Section 3.01 with respect to the Securities of a particular
series, provided that no Event of Default has occurred and is continuing with
respect to such Securities, the Company shall have the right, at any time or
from time to time during the term of such series, to defer the payment of
interest on such Securities for such period or periods as may be specified as
contemplated by Section 3.01 (each, an "Extension Period") during which
Extension Periods the Company shall have the right to make partial payments of
interest on any Interest Payment Date. No Extension Period shall end on a date
other than an Interest Payment Date. At the end of any such Extension Period
the Company shall pay all interest then accrued and unpaid on the Securities
(together with Additional Interest thereon, if any, at the rate specified for
the Securities of such series to the extent permitted by applicable law),
provided, however, that no Extension Period may extend beyond the Stated
-------- -------
Maturity of these Securities. During any such Extension Period, the Company
shall not (i) declare or pay dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of the Company's
capital stock (which includes common and preferred stock), or (ii) make any
payment of principal, interest, or premium, if any, on or repay, repurchase or
redeem any debt securities of the Company (including Other Debentures) that rank
pari passu with or junior in interest to the Securities of such series or
---- -----
49
(iii) make any guarantee payments with respect to any guarantee by the Company
of the debt securities of any Subsidiary of the Company (including Other
Guarantees) if such guarantee ranks pari passu with or junior in interest to the
---- -----
Securities of such series (other than (a) dividends or distributions in common
stock of the Company, (b) any declaration of a dividend in connection with the
implementation of a stockholders' rights plan, or the issuance of stock under
any such plan in the future, or the redemption or repurchase of any such rights
pursuant thereto, (c) payments under the applicable Central Fidelity Guarantee,
(d) purchases or acquisitions of shares of the Company's Common Stock in
connection with the satisfaction by the Company of its obligations under any
employee benefit plan or other contractual obligation of the Company (other than
a contractual obligation ranking pari passu with or junior to these Securities,
---- -----
(e) as a result of a reclassification of the Company's capital stock or the
exchange or conversion of one class or series of the Company's capital stock for
another class or series of the Company's capital stock, or (f) the purchase of
fractional interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged). Prior to the termination of any such Extension Period,
the Company may further extend such Extension Period; provided, however, that no
-------- -------
Extension Period shall exceed the period or periods specified in such Securities
or extend beyond the Stated Maturity of such Securities. Upon termination of any
Extension Period and upon the payment of all accrued and unpaid interest and any
Additional Interest then due on any Interest Payment Date, and subject to the
foregoing limitations, the Company may elect to begin a new Extension Period. No
interest shall be due and payable during an Extension Period, except at the end
thereof. The Company shall give the Trustee and the Property Trustee notice of
its election to begin any such Extension Period (or an extension thereof) at
least three Business Days prior to the Interest Payment Date or, with respect to
the Securities of a series issued to a Central Fidelity Capital Trust, prior to
the earlier of (i) the date the Distributions on the Trust Securities of such
Central Fidelity Capital Trust would have been payable except for the election
to begin or extend such Extension Period or (ii) the date the Administrative
Trustees of such Central Fidelity Capital Trust are required to give notice to
any automated quotation system or to holders of Trust Securities of the record
date or the date such Distributions are payable, but in any event not less than
three Business Days prior to such record date. There is no limitation on the
number of times that the Company may elect to begin an Extension Period.
50
SECTION 3.13. CUSIP Numbers. The Company in issuing the Securities
--------------
may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee
shall use "CUSIP" numbers in notices of redemption or other related material as
a convenience to Holders; provided, however, that any such notice or other
-------- -------
related material may state that no representation is made as to the correctness
of such numbers either as printed on the Securities or as contained in any
notice of a redemption or other related material and that reliance may be placed
only on the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
So long as the Securities are held by or on behalf of a Central
Fidelity Capital Trust, notwithstanding anything to the contrary herein, the
Company shall have the right to set off any payment it is otherwise required to
make hereunder in respect of any Security with and to the extent the Company has
theretofore made, or is concurrently on the date of such payment making, any
payment under Guarantee used to satisfy the related payment of indebtedness
hereunder.
ARTICLE IV
Satisfaction and Discharge
--------------------------
SECTION 4.01. Satisfaction and Discharge of Indenture. This
----------------------------------------
Indenture, upon Company Request, shall cease to be of further effect (except as
to (i) any surviving rights of transfer, substitution and exchange of
Securities, (ii) rights hereunder of Holders to receive payments of principal of
and interest on the Securities and other rights, duties and obligations of the
Holders as beneficiaries hereof with respect to the amounts, if any, deposited
with the Trustee pursuant to this Article IV and (iii) the rights and
obligations of the Trustee hereunder), and the Trustee, on demand of and at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 3.07 and
(ii) Securities for whose payment money has theretofore been deposited
in trust or segregated
51
and held in trust by the Company and thereafter repaid to the Company
or discharged from such trust, as provided in Section 10.03) have been
delivered to the Trustee for cancelation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancelation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year of the date of deposit, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of Clause (B)(i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for such purpose an amount in the currency or currencies in which the
Securities of such series are payable sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to the
Trustee for cancelation, for principal and interest (including any
Additional Interest) to the date of such deposit (in the case of Securities
which have become due and payable) or to the Stated Maturity or the date
for redemption, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture or the earlier
resignation or removal of the Trustee, the obligations of the Company to the
Trustee under Section 6.07 and, if money shall have been deposited with the
Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations
of the Trustee under Section 4.02 and the last paragraph of Section 10.03 shall
survive.
52
SECTION 4.02. Application of Trust Money. Subject to the provisions
---------------------------
of the last paragraph of Section 10.03, all money deposited with the Trustee
pursuant to Section 4.01, shall be held in trust and applied by the Trustee, in
accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal and interest for the payment of which such
money or obligations have been deposited with or received by the Trustee;
provided, however, that such moneys need not be segregated from other funds
-------- -------
except to the extent required by law.
ARTICLE V
Remedies
--------
SECTION 5.01. Events of Default. "Event of Default", wherever used
------------------
herein with respect to the Securities of any series, 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):
(1) default in the payment of any interest upon any Security of that
series, including any Additional Interest in respect thereof, when it
becomes due and payable, and continuance of such default for a period of 30
days (subject to the deferral of any due date in the case of an Extension
Period); or
(2) default in the payment of the principal of any Security of that
series when due, whether at its Maturity, upon redemption, by declaration
of acceleration or otherwise; or
(3) default in the observation or performance in any material respect,
of any covenant of the Company in this Indenture (other than a covenant a
default in the performance of which or the breach of which is elsewhere in
this Section specifically dealt with), and continuance of such default for
a period of 90 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in aggregate outstanding principal amount of
the
53
Securities of that series a written notice specifying such default and
requiring it to be remedied; or
(4) the entry or a decree or order by a court having jurisdiction in
the premises adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment
or composition of or in respect of the Company 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 the Company 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
(5) the institution by the Company 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 other similar official) of the Company 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 the Company in furtherance
of any such action; or
(6) in respect of a series issued to a Central Fidelity Capital Trust,
the voluntary or involuntary dissolution, winding-up or termination of a
Central Fidelity Capital Trust, except in connection with the distribution
of the Securities of such series to the holders of Trust Securities in
liquidation of such Central Fidelity Capital Trust, the redemption of all
the Trust Securities of a Central Fidelity Capital Trust, or certain
mergers, consolidations or amalgamations, each as permitted by the
applicable Trust Agreement; or
(7) any other Event of Default with respect to Securities of that
series as set forth in the Board
54
Resolution and the Officers' Certificate, or established in a supplemental
indenture hereto, prior to the issuance of the series of such Securities as
contemplated by Section 3.01.
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment. If
---------------------------------------------------
an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
the Securities of that series are Discount Securities, such portion of the
principal amount as may be specified in the terms of that series) of all the
Securities of that series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), provided,
--------
however, that, in the case of the Securities of a series issued to a Central
-------
Fidelity Capital Trust, if, upon an Event of Default, the Trustee or the Holders
of not less than 25% in aggregate principal amount of the Outstanding Securities
of that series fail to declare the principal of all the Securities of that
series to be immediately due and payable, the holders of at least 25% in
aggregate Liquidation Amount of the corresponding series of Capital Securities
then outstanding shall have such right by a notice in writing to the Company and
the Trustee with a copy to the Property Trustee. The Holders of a majority in
aggregate principal amount of the Outstanding Securities of a series may annul
such declaration and waive the default by written notice to the Property
Trustee, the Company and the Trustee if the default (other than the nonpayment
of the principal of these Securities which has become due solely by such
acceleration) 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 Trustee. Should the Holders of the Securities of such a
series fail to annul such declaration and waive such default, the holders of a
majority in aggregate Liquidation Amount of the Capital Securities shall have
such right. Upon any such declaration such principal amount (or specified
amount) of and the accrued interest (including any Additional Interest) on all
the Securities of such series shall become immediately due and payable,
provided, however, that the payment of principal and interest (including any
-------- -------
Additional Interest) on such Securities shall remain subordinated to the extent
provided in Article XIV.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the
55
money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in aggregate principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(A) all overdue installments of interest (including any Additional
Interest) on all Securities of that series,
(B) the principal of any Securities of that series which have
become due otherwise than by such declaration of acceleration and
interest thereon at the rate borne by the Securities, and
(C) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which has become due solely by such acceleration, have been cured or waived
as provided in Section 5.13.
The Company is required to file annually with the Trustee a
certificate as to whether or not the Company is in compliance with all the
conditions and covenants applicable to it under this Indenture.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Upon receipt by the Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, with respect to Securities of
a series all or part of which is represented by a Global Security, a record date
shall be established for determining Holders of Outstanding Securities of such
series entitled to join in such notice, which record date shall be at the close
of business on the day the 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;
56
provided, however, 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 5.02.
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement
----------------------------------------------------
by Trustee. The Company covenants that if:
-----------
(1) default is made in the payment of any instalment of interest
(including any Additional Interest) on any Security when such interest
becomes due and payable and such default continues for a period of 30 days,
or
(2) default is made in the payment of the principal of any Security
at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal, including any sinking fund payment or
analogous obligations and interest (including any Additional Interest); and, in
addition thereto, all amounts owing to the Trustee under Section 6.07 and
Section 10.06.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in
57
its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 5.04. Trustee May File Proofs of Claim. In case of the
---------------------------------
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors,
(a) the Trustee (irrespective of whether the principal of the
Securities of any series shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Company for the payment of overdue
principal or interest (including any Additional Interest)) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal
and interest (including any Additional Interest) owing and unpaid in
respect to the Securities and to file such other papers or documents
as may be necessary or advisable and to take any and all actions as
are authorized under the Trust Indenture Act in order to have the
claims of the Holders and any predecessor to the Trustee under Section
6.07 and of the Holders allowed in any such judicial proceedings; and
(ii) in particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any
such claims and to distribute the same in accordance with Section
5.06; and
(b) any custodian, receiver, assignee, trustee, liquidator,
sequestrator (or other similar official) in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Trustee for
distribution in accordance with Section 5.06, and in the event that the
Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it and any predecessor
Trustee under Section 6.07.
58
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any proceeding; provided, however, that
-------- -------
the Trustee may, on behalf of the Holders, vote for the election of a trustee in
bankruptcy or similar official and be a member of a creditors' or other similar
committee.
SECTION 5.05. Trustee May Enforce Claim Without Possession of
-----------------------------------------------
Securities. All rights of action and claims under this Indenture or the
-----------
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of all the amounts owing the Trustee and any
predecessor Trustee under Section 6.07, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 5.06. Application of Money Collected. Any money or property
-------------------------------
collected or to be applied by the Trustee with respect to a series of Securities
pursuant to this Article shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of such money or
property on account of principal or interest (including any Additional
Interest), upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
First: to the payment of all amounts due the Trustee and any
-----
predecessor Trustee under Section 6.07;
Second: to the payment of the amounts then due and unpaid upon such
------
series of Securities for principal and interest (including any Additional
Interest), in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such series of Securities for
principal and interest (including any Additional Interest), respectively;
and
Third: the balance, if any, to the Person or Persons entitled
-----
thereto.
59
SECTION 5.07. Limitation on Suits. No Holder of any Securities of
--------------------
any series shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture or for the appointment of a receiver,
assignee, trustee, liquidator, sequestrator (or other similar official) or for
any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing itself of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Securities, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
SECTION 5.08. Unconditional Right of Holders to Receive Principal and
-------------------------------------------------------
Interest. Notwithstanding any other provision in this Indenture, the Holder of
---------
any Security shall have the right which is absolute and unconditional to receive
payment of the principal of and (subject to Section 3.08) interest (including
any Additional Interest) on such Security on the respective Stated Maturities
expressed in such Security and to institute suit for the enforcement of any such
payment, and such right shall not be
60
impaired without the consent of such Holder. In the case of Securities of a
series issued to a Central Fidelity Capital Trust, any holder of the
corresponding series of Capital Securities shall have the right, upon the
occurrence of an Event of Default described in Section 5.01(1) or 5.01(2)
hereof, to institute a suit directly against the Company for enforcement of
payment to such Holder of principal of and (subject to Section 3.08) interest
(including any Additional Interest) on the Securities having a principal amount
equal to the aggregate Liquidation Amount of the Capital Securities of the
corresponding series held by such Holder. Notwithstanding any payments made to a
holder of Capital Securities by the Company in connection with a suit directly
against the Company, the Company shall remain obligated to pay the principal of
or interest on the Securities, and the Company shall be subrogated to the rights
of the holder of such Capital Securities with respect to payments on the Capital
Securities to the extent of any payments made by the Company to such holder in
any suit directly against the Company.
The holders of the Capital Securities will not be able to exercise
directly any remedies, other than those set forth in this Section 5.08,
available to the holders of the Securities unless there shall have been an Event
of Default under the Trust Agreement.
SECTION 5.09. Restoration of Rights and Remedies. If the Trustee or
-----------------------------------
any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then
and in every case the Company, the Trustee and the Holders shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 5.10. Rights and Remedies Cumulative. Except as otherwise
-------------------------------
provided in the last paragraph of Section 3.07, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
61
SECTION 5.11. Delay or Omission Not Waiver. Except as otherwise
-----------------------------
provided in the last paragraph of Section 3.07, no delay or omission of the
Trustee or of any Holder of any Security to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders as the case may be.
SECTION 5.12. Control by Holders. The Holders of a majority in
-------------------
principal amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee, with respect to the Securities of such series, provided that:
--------
(1) such direction shall not be in conflict with any rule of law or
with this Indenture;
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction; and
(3) subject to the provisions of Section 6.01, the Trustee shall have
the right to decline to follow such direction if the Trustee in good faith
shall, by a Responsible Officer or Officers of the Trustee, determine that
the proceeding so directed would be unjustly prejudicial to the Holders not
joining in any such direction or would involve the Trustee in personal
liability.
Upon receipt by the Trustee of any written notice directing the time,
method or place of conducting any such proceeding or exercising any such trust
or power, with respect to Securities of a series all or part of which is
represented by a Global Security, a record date shall be established for
determining Holders of Outstanding Securities of such series entitled to join in
such notice, which record date shall be at the close of business on the day the
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, however, that, unless the Holders of a majority in principal amount of
-------- -------
the Outstanding Securities of such
62
series shall have joined in such notice prior to the day which is 90 days after
such record date, such notice 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 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
5.12.
SECTION 5.13. Waiver of Past Defaults. The Holders of a majority in
------------------------
aggregate principal amount of the Outstanding Securities of a series affected
thereby may, on behalf of the Holders of all the Securities of such series,
waive any past default, except a default in the payment of principal of or
interest (including any Additional Interest) (unless such default has been cured
and a sum sufficient to pay all overdue installments of interest and principal
due otherwise than by acceleration has been deposited with the Trustee) on any
Security of such series or a default in respect of a covenant or provision which
under Article IX cannot be modified or amended without the consent of the Holder
of each outstanding Security of such series and, in the case of Securities of a
series issued to a Central Fidelity Capital Trust, should the Holders of such
Securities fail to annul such declaration and waive such default, the holders of
a majority in aggregate Liquidation Amount of the related series of Capital
Securities shall have such right.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs. All parties to this Indenture
----------------------
agree, and each Holder of any Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the filing
by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to
63
any suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of the Outstanding Securities of any series,
or to any suit instituted by any Holder for the enforcement of the payment of
the principal of or interest (including any Additional Interest) on any Security
on or after the respective Stated Maturities expressed in such Security.
SECTION 5.15. Waiver of Usury, Stay or Extension Laws. The Company
----------------------------------------
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE VI
The Trustee
-----------
SECTION 6.01. Certain Duties and Responsibilities. (a) Except
------------------------------------
during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants
or obligatio ns shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provisions
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture (but need not
confirm or investigate the accuracy of mathematical calculations or other
facts stated therein).
64
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct except that:
(i) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of Holders pursuant to Section 5.12 relating to the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such series.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if there shall be reasonable grounds for believing that
repayment of such funds or indemnity satisfactory to its against such risk or
liability is not assured to it.
(e) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 6.02. Notice of Defaults. Within 90 days after actual
-------------------
knowledge by a Responsible Officer of the Trustee of the occurrence of any
default hereunder with respect to the Securities of any series, the Trustee
shall transmit by mail to all Holders of Securities of such series, as their
names and addresses appear in the Securities Register, notice of such default
hereunder known to a Responsible Officer of the Trustee, unless such default
65
shall have been cured or waived; provided, however, that, except in the case of
-------- -------
a default in the payment of the principal of or interest (including any
Additional Interest) on any Security of such series, the Trustee shall be fully
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 Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of Securities of such series; and
provided, further, however, that, in the case of any default of the character
-------- ------- -------
specified in Section 5.01(3), no such notice to Holders of Securities of such
series shall be given until at least 30 days after the occurrence thereof. For
the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series.
SECTION 6.03. Certain Rights of Trustee. Subject to the provisions
--------------------------
of Section 6.01:
(a) the 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, Security or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) shall be entitled to receive
and may, in the absence of bad faith on its part, conclusively rely upon an
Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
66
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee 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;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, indenture,
Security or other paper or document, but the Trustee in its discretion may make
such inquiry or investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such inquiry or investigation, it shall
be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney at the reasonable cost of the Company upon
giving reasonable notice to the Company and shall incur no liability or
additional liability of any kind by reason of such inquiry or investigation;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) the Trustee shall not be under any obligation to take any action
that is discretionary under the provisions of this Indenture;
(i) the Trustee shall not be charged with knowledge of any Event of
Default unless either (1) a Responsible Officer of the Trustee shall have actual
knowledge or (2) the Trustee shall have received notice thereof in accordance
with Section 1.05(1) hereof from the Company or a Holder;
(j) no permissive power or authority available to the Trustee shall be
construed as a duty; and
(k) the Trustee shall not be liable for any action taken, suffered or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture.
67
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities.
-------------------------------------------------------
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Securities or any offering or disclosure materials prepared in connection
therewith. The Trustee shall not be accountable for the use or application by
the Company of the Securities or the proceeds thereof.
SECTION 6.05. May Hold Securities. The Trustee, any Paying Agent,
--------------------
Securities Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 6.08 and 6.13, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Paying Agent, Securities Registrar or such
other agent.
SECTION 6.06. Money Held in Trust. Money held by the Trustee in
--------------------
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed in writing with the
Company.
SECTION 6.07. Compensation and Reimbursement. The Company, as
-------------------------------
borrower on the Securities, agrees:
(1) to pay to the Trustee from time to time such compensation as the
Company and the Trustee shall from time to time agree in writing for all
services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation a trustee of an
express trust);
(2) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to
its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense (other than taxes based upon, measured by or
determined by the income of the Trustee) (including the reasonable
compensation and the expenses and disbursements of its
68
agents and counsel) incurred without negligence or bad faith, arising out
of or in connection with the acceptance or administration of this trust or
the performance of its duties 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 obligations of the Company under this Section 6.07 shall survive
the termination of this Indenture or the earlier resignation or removal of the
Trustee.
To secure the Company's payment obligations in this Section, the
Company and the Holders agree that the Trustee shall have a lien prior to the
Securities on all money or property held or collected by the Trustee. Such lien
shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 5.01(4) or (5) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under the Bankruptcy Code of 1978, as amended, or any successor
statute.
The provisions of this Section 6.07 shall survive the termination of
this Indenture.
SECTION 6.08. Disqualification; Conflicting Interests. The Trustee
----------------------------------------
for the Securities of any series issued hereunder shall be subject to the
provisions of Section 310(b) of the Trust Indenture Act. Nothing herein shall
prevent the Trustee from filing with the Commission the application referred to
in the second-to-last paragraph of Section 301(b) of the Trust Indenture Act.
SECTION 6.09. Corporate Trustee Required, Eligibility. There shall
----------------------------------------
at all times be a Trustee hereunder which shall be:
(a) a corporation organized and doing business under the laws of the
United States of America or of any state, territory or the District of
Columbia, authorized under such laws to exercise corporate trust powers and
subject to supervision or examination by Federal, state, territorial or
District of Columbia authority, or
(b) a corporation or other Person organized and doing business under
the laws of a foreign government
69
that is permitted to act as Trustee pursuant to a rule, regulation or order
of the Commission, authorized under such laws to exercise corporate trust
powers, and subject to supervision or examination by authority of such
foreign government or a political subdivision thereof substantially
equivalent to the supervision or examination applicable to United States
institutional trustees,
in either case having a combined capital and surplus of at least $50,000,000,
subject to supervision of examination by Federal or state authority. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then,
for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article. Neither the Company nor any Person directly or indirectly
controlling, controlled by or under common control with the Company shall serve
as Trustee for the Securities of any series issued hereunder.
SECTION 6.10. Resignation and Removal; Appointment of Successor. (a)
--------------------------------------------------
No resignation or removal of the Trustee and no appointment of a Successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the Successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If an
instrument of acceptance by a Successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a Successor Trustee with respect to the Securities of such
series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
70
(d) If at any time:
(i) the Trustee shall fail to comply with Section 6.08 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(ii) the Trustee shall cease to be eligible under Section 6.09 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then, in any such case, (i)
the Company, acting pursuant to the authority of a Board Resolution, may
remove the Trustee, or (ii) subject to Section 5.14, any Holder who has
been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment
of a Successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a Successor Trustee with respect to the
Securities of that or those series. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a Successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the Successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment, become
the Successor Trustee with respect to the Securities of such series and
supersede the Successor Trustee appointed by the Company. If no Successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
hereinafter provided, within 30 days of such resignation or removal the Trustee
or any Holder who has been a bona fide Holder of a Security for at least six
months, subject to Section 5.14, on behalf of himself and all others similarly
situated, may
71
petition any court of competent jurisdiction for the appointment of a Successor
Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a Successor Trustee with respect to the Securities of any series
by mailing written notice of such event by first-class mail, postage prepaid, to
the Holders of Securities of such series as their names an addresses appear in
the Securities Register. Each notice shall include the name of the Successor
Trustee with respect to the Securities of such series and the address of its
Corporate Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor. (a) In case
---------------------------------------
of the appointment hereunder of a Successor Trustee with respect to all
Securities, every such Successor Trustee so appointed shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such Successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers trusts
and duties of the retiring Trustee; but, on the request of the Company or the
Successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such Successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such Successor Trustee all property and money held by
such retiring Trustee hereunder.
(b) In case of the appointment hereunder of the Successor Trustee
with respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each Successor Trustee with respect to the Securities
of one or more series shall execute and deliver a written instrument or an
indenture supplemental hereto wherein each Successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each Successor Trustee all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of such
Successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
as to which the retiring Trustee is not
72
retiring shall continue to be vested in the retiring Trustee, and (3) shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such written
instrument or supplemental indenture shall constitute such Trustee co-trustees
of the same trust and that each such Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee and upon the execution and delivery of
such written instrument or supplemental indenture the resignation or removal of
the retiring Trustee shall become effective to the extent provided therein and
each such Successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts, and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such Successor Trustee relates; but, on request of the Company or
any Successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such Successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series to
which the appointment of such Successor Trustee relates.
(c) Upon request of any such Successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such Successor Trustee all rights, powers and trusts referred to
in paragraph (a) or (b) of this Section, as the case may be.
(d) No Successor Trustee shall accept its appointment unless at the
time of such acceptance such Successor Trustee shall be qualified and eligible
under this Article. In the event that the Trust Indenture Act applies to this
Indenture at the time that any Successor Trustee is appointed, such Successor
Trustee shall qualify under such Act.
SECTION 6.12. Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business. Any corporation into which the Trustee may be merged or converted or
---------
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article (including qualification under the Trustee Indenture Act, if
applicable), without the execution or filing of any paper or any further act on
the part of any of
73
the parties hereto. In case any Securities shall have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated, and in case any
Securities shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor Trustee or in
the name of such Successor Trustee, and in all cases the certificate of
authentication shall have the full force which it is provided anywhere in the
Securities or in this Indenture that the certificate of the Trustee shall have.
SECTION 6.13. Preferential Collection of Claims Against Company. If
--------------------------------------------------
and when the Trustee shall be or become a creditor of the Company (or any other
obligor upon the Securities), the Trustee shall be subject to the provisions of
the Trust Indenture Act regarding the collection of claims against the Company
(or any such other obligor).
SECTION 6.14. Appointment of Authenticating Agent. The Trustee may
------------------------------------
appoint an authenticating agent or agents (each, an "Authenticating Agent") with
respect to one or more series of Securities which shall be authorized to act on
behalf of the Trustee to authenticate Securities of such series issued upon
original issue and upon exchange, registration of transfer or partial redemption
thereof, and Securities so authenticated shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Where reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, or of any state, Territory or
the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of
74
this Section, such Authenticating Agent shall resign immediately in the manner
and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of an Authenticating Agent shall be the successor
Authenticating Agent hereunder, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 1.06 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provision of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of
75
each series may have endorsed thereon, in addition to the Trustee's certificate
of authentication, an alterative certificate of authentication in the following
form:
This is one of the Securities referred to in the within mentioned
Indenture.
Dated:
--------------------------------
Agent Trustee
by
-----------------------------
As Authenticating Agent
by
-----------------------------
Authorized Signatory
SECTION 6.15. Trustee's Rights and Obligations After Qualification of
-------------------------------------------------------
Indenture. Following the qualification of this Indenture under the Trust
----------
Indenture Act, the Trustee shall have and be subject to all the duties and
responsibilities specified with respect to an indenture trustee under the Trust
Indenture Act. Subject to such provisions, the Trustee is under no obligation to
exercise any of the powers vested in it by this Indenture at the request of any
holder of the Securities, unless offered indemnity to its satisfaction by such
holder against the costs, expenses and liabilities which might be incurred
thereby. The Trustee will not be required to expend or risk its own funds or
otherwise incur personal financial liability in the performance of its duties if
the Trustee reasonably believes that repayment or adequate indemnity is not
reasonably assured to it. Notwithstanding the foregoing, nothing in this Section
6.15 shall be deemed to abrogate any of the rights, indemnities or protections
otherwise provided to the Trustee under this Indenture.
76
ARTICLE VII
Holder's Lists and Reports by Trustee and Company
-------------------------------------------------
SECTION 7.01. Company to Furnish Trustee Names and Addresses of
-------------------------------------------------
Holders. The Company will furnish or cause to be furnished to the Trustee:
--------
(a) quarterly, not more than 15 days after each Regular Record Date in
each year, a list, in such form as the Trustee may reasonably require, of
the names and addresses of the Holders as of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished, excluding from any such list names and
---------
addresses received by the Trustee in its capacity as Securities Registrar.
SECTION 7.02. Preservation of Information, Communications to Holders.
-------------------------------------------------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.01 and the names and
addresses of Holders received by the Trustee in its capacity as Securities
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided in the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of the
disclosure of information as to the names and addresses of the Holders made
pursuant to the Trust Indenture Act.
SECTION 7.03. Reports by Trustee. (a) The Trustee shall transmit to
-------------------
Holders such reports concerning the Trustee and its actions under this Indenture
as may be required pursuant to the Trust Indenture Act, at the times and in the
manner provided pursuant thereto.
77
(b) Reports so required to be transmitted at stated intervals of not
more than 12 months shall be transmitted no later than the last calendar day in
February of each calendar year, commencing with the last calendar day in
February of the year following the Original Issue Date.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each securities exchange
upon which the Securities are listed and also with the Commission. The Company
will notify the Trustee whenever the Securities are listed on any securities
exchange.
SECTION 7.04. Reports by Company. The Company shall file with the
-------------------
Trustee and with the Commission, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided in
the Trust Indenture Act; provided that any such information, documents or
--------
reports required to be filed with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934, as amended, shall be filed
with the Trustee within 15 days after the same is required to be filed with the
Commission. Notwithstanding that the Company may not be required to remain
subject to the reporting requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended, the Company shall continue to file with the
Commission and provide the Trustee with the annual reports and the information,
documents and other reports which are specified in Sections 13 and 15(d) of the
Securities Exchange Act of 1934, as amended. The Company also shall comply with
the other provisions of Trust Indenture Act Section 314(a). Delivery of such
reports, information and documents to the Trustee is for informational purposes
only and the Trustee's receipt of such shall not constitute constructive notice
of any information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
----------------------------------------------------
SECTION 8.01. Company May Consolidate, etc., Only on Certain Terms.
-----------------------------------------------------
The Company shall not consolidate with or merge with or into any other Person or
convey, transfer or lease its properties and assets substantially as an entirety
78
to any Person, and no Person shall consolidate with or merge with or into the
Company or convey, transfer or lease its properties and assets substantially as
an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge with or into
another Person or convey, transfer or lease its properties and asses
substantially as an entirety to any Person, the corporation formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a corporation,
partnership or trust organized and existing under the laws of the United
States of America or any State or the District of Columbia, and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of and interest (including any Additional
Interest) on all the Securities and the performance of every covenant and
every obligation of this Indenture on the part of the Company to be
performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have occurred and be continuing;
(3) if at such time Securities of a series issued to a Central
Fidelity Capital Trust are Outstanding, such consolidation, merger,
conveyance, transfer or lease is permitted under the related Trust
Agreement and Central Fidelity Guarantee and does not give rise to any
breach or violation of the related Trust Agreement or Central Fidelity
Guarantee; and
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that such consolidation, merger,
conveyance, transfer or lease and any such supplemental indenture complies
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with; and the Trustee,
subject to Section 6.01, may rely upon such Officers' Certificate and
Opinion of Counsel as conclusive evidence that such transaction complies
with this Section 8.01.
79
SECTION 8.02. Successor Company Substituted. Upon any consolidation
------------------------------
or merger by the Company with or into any other Person, or any conveyance,
transfer or lease by the Company of its properties and assets substantially as
an entirety to any Person in accordance with Section 8.01, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein; and in the event of any such conveyance, transfer or
lease the Company shall be discharged from all obligations and covenants under
the Indenture and the Securities and may be dissolved and liquidated.
Such successor Person may cause to be signed, and may issue either in
its own name or in the name of the Company, any or all of the Securities
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Trustee; and, upon the order of such successor Person
instead of the Company and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and shall make
available for delivery any Securities which previously shall have been signed
and delivered by the officers of the Company to the Trustee for authentication
pursuant to such provisions and any Securities which such successor Person
thereafter shall cause to be signed and delivered to the Trustee on its behalf
for the purpose pursuant to such provisions. All the Securities so issued shall
in all respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities had been issued at the date of the
execution hereof.
In case of any such consolidation, merger, sale, conveyance or lease,
such changes in phraseology and form may be made in the Securities thereafter to
be issued as may be appropriate.
ARTICLE IX
Supplemental Indentures
-----------------------
SECTION 9.01. Supplemental Indentures without Consent of Holders.
---------------------------------------------------
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the
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Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory, to the Trustee, for any of
the following:
(1) to evidence the succession of another Person to the Company, and
the assumption by any such successor of the covenants of the Company herein
and in the Securities contained;
(2) to convey, transfer, assign, mortgage or pledge any property to or
with the Trustee or to surrender any right or power herein conferred upon
the Company;
(3) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 or 3.01;
(4) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company;
(5) to add any additional Events of Default;
(6) to change or eliminate any of the provisions of this Indenture;
provided that any such change or elimination (a) shall become effective
--------
only when there is no Security Outstanding of any series created prior to
the execution of such supplemental indenture which is entitled to the
benefit of such provision or (b) shall not apply to any Outstanding
Securities;
(7) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture; provided that such action pursuant to this clause (7)
--------
shall not materially adversely affect the interest of (a) the Holders of
Securities of any series or, (b) in the case of the Securities of a series
issued to a Central Fidelity Capital Trust and for so long as any of the
corresponding series of Capital Securities shall remain outstanding, the
holders of such Capital Securities;
(8) to evidence and provide for the acceptance of appointment
hereunder by a Successor Trustee with respect to the Securities of one or
more series and to
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add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
6.11(b); or
(9) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act.
SECTION 9.02. Supplemental Indentures with Consent of Holders. With
------------------------------------------------
the consent of the Holders of not less than a majority in principal amount of
the Outstanding Securities of each series affected by such supplemental
indenture, by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities of such series under this Indenture; provided, however, that no such
-------- -------
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) except to the extent permitted by Section 3.12 or as otherwise
specified as contemplated by Section 3.01 with respect to the extension of
the interest payment period of the Securities of any series, change the
Stated Maturity of the principal of, or any installment of interest
(including any Additional Interest) on, any Security, or reduce the
principal amount thereof or the rate of interest thereon, or reduce the
amount of principal of a Discount Security that would be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to
Section 5.02, or change the place of payment where, or the coin or currency
in which, any Security or interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
date fixed for redemption thereof);
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions
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of this Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture;
(3) modify any of the provisions of this Section, Section 5.13 or
Section 10.05, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Security affected thereby; or
(4) modify the provisions in Article XIII of this Indenture with
respect to the subordination of Outstanding Securities of any series in a
manner adverse to the Holders thereof;
provided that, in the case of the Securities of a series issued to a Central
--------
Fidelity Capital Trust, so long as any of the corresponding series of Capital
Securities remain outstanding, no such amendment shall be made that adversely
affects the holders of such Capital Securities in any material respect, and no
termination of this Indenture shall occur, and no waiver of any Event of Default
or compliance with any covenant under this Indenture shall be effective, without
the prior consent of the holders of at least a majority of the aggregate
Liquidation Amount of such Capital Securities then outstanding unless and until
the principal of the Securities of such series and all accrued and, subject to
Section 3.08, unpaid interest (including any Additional Interest) thereon have
been paid in full; and provided further, however, that in the case of the
---------------- -------
Securities of a series issued to a Central Fidelity Capital Trust, so long as
any of the corresponding series of Capital Securities remain outstanding, no
amendment shall be made to Section 5.08 of this Indenture that would impair the
rights of the holders of such Capital Securities provided herein without the
prior consent of the holders of each Capital Security then outstanding unless
and until the principal of the Securities of such series and all accrued and
(subject to Section 3.08) unpaid interest (including any Additional Interest)
thereon have been paid in full.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to consent to any indenture
supplemental hereto. If a record date is fixed, the Holders on such record date,
or their duly designated proxies, and only such Persons, shall be entitled to
consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; provided, that unless such consent shall have
become effective by virtue of the requisite percentage having been obtained
prior to the date which is 90 days after such
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record date, any such consent previously given shall automatically and without
further action by any Holder be canceled and of no further effect.
A supplemental indenture that changes or eliminates any covenant or
other provision of this Indenture that has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures. In executing or
-------------------------------------
accepting the additional trusts created by any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
6.01) shall be fully protected in conclusively relying upon, an Officer's
Certificate and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture, and that
all conditions precedent have been complied with. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise, or
which may subject it to liability or be contrary to applicable law.
SECTION 9.04. Effect of Supplemental Indentures. Upon the execution
----------------------------------
of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
SECTION 9.05. Conformity with Trust Indenture Act. No supplemental
------------------------------------
indenture will be qualified or executed pursuant to the Trust Indenture Act
unless this Indenture is so qualified, or in connection with Capital Securities
which are registered under the Securities Exchange Act of 1934, as amended, upon
the effectiveness of a registration statement and the consummation of an
exchange offer pursuant to a Registration Agreement as contemplated in Article
XII hereof. Every supplemental indenture so
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qualified or executed shall conform to the requirements of the Trust Indenture
Act as then in effect.
SECTION 9.06. Reference in Securities to Supplemental Indentures.
---------------------------------------------------
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Company,
bear a notation in form approved by the Company as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new Securities
of any series so modified as to conform, in the opinion of the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such Series.
ARTICLE X
Covenants
---------
SECTION 10.01. Payment of Principal and Interest. The Company
----------------------------------
covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay the principal of and interest on the Securities of that
series in accordance with the terms of such Securities and this Indenture.
SECTION 10.02. Maintenance of Office or Agency. The Company will
--------------------------------
maintain in each Place of Payment for any series, an office or agency where
Securities of that series may be presented or surrendered for payment and an
office or agency where Securities may be surrendered for transfer or exchange
and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company initially appoints the
Trustee, acting through its Corporate Trust Office, as its agent for said
purposes. The Company will give prompt written notice to the Trustee of any
change in the location of any such office or agency. If at any time the Company
shall fail to maintain such office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all of such purposes, and may from time to time rescind such
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designations; provided, however, that no such designation or rescission shall in
-------- -------
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
and any change in the location of any such office or agency.
SECTION 10.03. Money for Security Payments to be Held in Trust. If
------------------------------------------------
the Company shall at any time act as its own Paying Agent with respect to any
series of Securities, it will, on or before each due date of the principal of or
interest on any of the Securities of such series, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient to pay the
principal or interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided, and will promptly notify
the Trustee of its failure so to act.
Whenever the Company shall have one or more Paying Agents, it will,
prior to 10:00 a.m. New York City time on each due date of the principal of or
interest on any Securities, deposit with a Paying Agent a sum sufficient to pay
the principal or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal or interest, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of its
failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and make available for delivery to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of or
interest on Securities in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed
of as herein provided;
(2) give the Trustee written notice of any default by the Company (or
any other obligor upon the Securities) in the making of any payment of
principal or interest;
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent; and
86
(4) comply with the provisions of the Trust Indenture Act applicable
to it as a Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by the Company or any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or interest on any
Security and remaining unclaimed for two years after such principal or interest
has become due and payable shall (unless otherwise required by mandatory
provision of applicable escheat or abandoned or unclaimed property law) be paid
on Company Request to the Company, or (if then held by the Company) shall
(unless otherwise required by mandatory provision of applicable escheat or
abandoned or unclaimed property law) be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
-------- -------
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in the Borough of Manhattan, the City of New York,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Company.
SECTION 10.04. Statement as to Compliance. The Company shall deliver
---------------------------
to the Trustee, within 120 days after the end of such calendar year of the
Company commencing after the date hereof, an Officers' Certificate executed by
authorized officers at least one of whom shall be the principal executive,
financial or accounting officer of the Company covering the preceding calendar
year, stating whether or not to the best knowledge of the signers thereof the
Company is in default in the performance, observance or fulfillment of or
compliance with any of the material terms,
87
provisions, covenants and conditions of this Indenture, and if the Company shall
be in such default, specifying all such defaults and the nature and status
thereof of which they may have knowledge. For the purpose of this Section 10.04,
compliance shall be determined without regard to any grace period (other than an
Extension Period) or requirement of notice provided pursuant to the terms of
this Indenture.
SECTION 10.05. Waiver of Certain Covenants. The Company may omit in
----------------------------
any particular instance to comply with any covenant or condition as specified as
contemplated by Section 3.01 with respect to the Securities of any series, if
before or after the time for such compliance the Holders of at least a majority
in principal amount of the Outstanding Securities of such series shall, by Act
of such Holders, either waive such compliance in such instance or generally
waive compliance with such covenant or condition, but no such waiver shall
extend to or affect such covenant or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the
Company in respect of any such covenant or condition shall remain in full force
and effect.
SECTION 10.06. Payment of the Trust's Costs and Expenses. Since the
------------------------------------------
Central Fidelity Capital Trusts are being formed solely to facilitate the
investment in the Securities, the Company, as borrower on the Securities, hereby
covenants to pay all debts and obligations (other than with respect to the
payment of principal and interest on the Trust Securities) and all costs and
expenses of such Trusts (including, but not limited to, all costs and expenses
relating to the organization of such Trusts, the fees and expenses of the
Trustees and all costs and expenses relating to the operation of such Trusts)
and to pay any and all taxes, duties, assessments or other governmental charges
of whatever nature (other than United States withholding taxes) imposed on such
Trusts by the United States, or any other taxing authority (such payments of
amounts in connection with taxes being herein referred to as "Additional Sums"),
so that the net amounts received and retained by such Trusts and their
respective Property Trustees after paying such expenses or Additional Sums will
be equal to the amounts such Trusts and Property Trustees would have received
had no such costs, expenses or taxes, duties, assessments or other governmental
charges been incurred by or imposed on such Trusts. The foregoing obligations
of the Company are for the benefit of, and shall be enforceable by, any person
to whom such debts, obligations, costs, expenses and taxes are owed (a
"Creditor") whether or not such Creditor has received notice thereof. Any such
Creditor may enforce such obligations of
88
the Company hereunder directly against the Company, and the Company hereby
irrevocably waives any right or remedy to require that any such Creditor take
any action against any Trust or any other person before proceeding against the
Company. The Company also agrees hereby to execute such additional agreements as
may be necessary or desirable to give full effect to the foregoing.
SECTION 10.07. Additional Covenants. The Company covenants and
---------------------
agrees with each Holder of Securities of a series issued to a Central Fidelity
Capital Trust that it will not (i) declare or pay any dividends or distributions
on, or redeem, purchase, acquire or make a liquidation payment with respect to,
any shares of the Company's capital stock (which includes common and preferred
stock), or (ii) make any payment of principal, interest or premium, if any, on
or repay, repurchase or redeem any debt securities of the Company (including
Other Debentures) that rank pari passu with or junior in interest to the
---- -----
Securities of such series or (iii) make any guarantee payments with respect to
any guarantee by the Company of debt securities of any subsidiary of the Company
(including Other Guarantees) if such guarantee ranks pari passu with or junior
---- -----
in interest to the Securities (other than (a) dividends or distributions in
Common Stock of the Company, (b) any declaration of a dividend in connection
with the implementation of a stockholders' rights plan, or the issuance of stock
under any such plan in the future, or the redemption or repurchase of any such
rights pursuant thereto, (c) payments under the Central Fidelity Guarantee, (d)
purchases or acquisitions of shares of the Company's Common Stock in connection
with the satisfaction by the Company of its obligations under any employee
benefit plan or other contractual obligation of the Company (other than a
contractual obligation ranking pari passu with or junior in interest to these
---- -----
Securities), (e) as a result of a reclassification of the Company's capital
stock or the exchange or conversion of one class or series of the Company's
capital stock for another class or series of the Company's capital stock or (f)
the purchase of fractional interests in shares of the Company's capital stock
pursuant to the conversion or exchange provisions of such capital stock or the
security being converted or exchanged), if at such time (i) there shall have
occurred an Event of Default, (ii) the Company shall be in default with respect
to its payment of any obligations under the related Central Fidelity Guarantee
or (iii) the Company shall have given notice of its election to begin an
Extension Period as provided herein and shall not have rescinded such notice, or
such Extension Period, or any extension thereof, shall be continuing.
89
The Company also covenants with each Holder of Securities of a series
issued to a Central Fidelity Capital Trust (i) to maintain directly, or
indirectly through a wholly owned Subsidiary, 100% ownership of the Common
Securities of such Central Fidelity Capital Trust; provided, however, that any
-------- -------
permitted successor of the Company hereunder may succeed to the Company's
ownership of such Common Securities, (ii) not to voluntarily terminate, windup
or liquidate such Central Fidelity Capital Trust, except (a) in connection with
a distribution of the Securities of such series to the holders of Capital
Securities in liquidation of such Central Fidelity Capital Trust or (b) in
connection with certain mergers, consolidations or amalgamations permitted by
the related Trust Agreement and (iii) to use its reasonable best efforts,
consistent with the terms and provisions of such Trust Agreement, (x) not to
adversely affect such Central Fidelity Capital Trust's status as a grantor trust
and (y) to not cause such Central Fidelity Capital Trust to be classified as an
association taxable as a corporation for United States Federal income tax
purposes.
SECTION 10.08. Information Returns. For each year during which any
--------------------
Securities are outstanding, the Company shall furnish to each Paying Agent on a
timely basis such information as may be reasonably requested by each Paying
Agent in order that such Paying Agent may prepare the information which it is
required to report for such year on Internal Revenue Service Forms 1096 and
1099. Such information shall include the amount of original issue discount, if
any, includible in income for each $1,000 of principal amount at Stated Maturity
of outstanding Securities during such year.
SECTION 10.09 Statement by Officers as to Default. The Company shall
-----------------------------------
deliver to the Trustee, within five days after the Company becomes aware of the
occurrence of any Event of Default, an Officers' Certificate setting forth the
details of such Event of Default and the action which the Company proposes to
take with respect thereto, if known at such time.
SECTION 10.10 Delivery of Certain Information. If specified as
-------------------------------
contemplated by Section 3.01 with respect to a series of Securities, at any time
when the Company is not subject to Section 13 or 15(d) of the Exchange Act, upon
the request of a Holder of a Security, the Company will promptly furnish or
cause to be furnished Rule 144A Information (as defined below) to such Holder,
to a prospective purchaser who is a "qualified institutional buyer", within the
meaning of Rule 144A under the Securities Act, of such Security
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designated by such Holder in order to permit compliance by such Holder with Rule
144A in connection with the resale of such Security by such Holder; provided,
--------
however, that unless otherwise specified as contemplated by Section 3.01, the
-------
Company shall not be required to furnish such information in connection with any
request made on or after the date which is two years from the later of (i) the
date such Security (or any predecessor Security) was acquired from the Company
or (ii) the date such Security (or any predecessor Security) was last acquired
from an "affiliate" of the Company within the meaning of Rule 144 under the
Securities Act. "Rule 144A Information" shall be such information as is
specified pursuant to Rule 144A(d)(4) under the Securities Act as in effect on
the date hereof.
ARTICLE XI
Redemption or Prepayment of Securities
--------------------------------------
SECTION 11.01. Applicability of This Article. Redemption of
------------------------------
Securities (whether by operation of a sinking fund or otherwise) as permitted or
required by any form of Security issued pursuant to this Indenture shall be made
in accordance with such form of Security and this Article; provided, however,
-------- -------
that if any provision of any such form of Security shall conflict with any
provision of this Article, the provision of such form of Security shall govern.
Except as otherwise set forth in the form of Security for such series, each
Security shall be subject to partial redemption only in an amount not less than
$100,000 or, in the case of the Securities of a series issued to a Central
Fidelity Capital Trust, an amount not less than $100,000, or integral multiples
of $1,000 in excess thereof.
SECTION 11.02. Election To Redeem; Notice to Trustee. The election
--------------------------------------
of the Company to redeem any Securities shall be evidenced by or pursuant to a
Board Resolution. In case of any redemption at the election of the Company of
any Securities of any particular series and having the same terms, the Company
shall, not less than 30 nor more than 60 days prior to the date fixed for
redemption (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee and, in the case of Securities held by or on behalf of a
Central Fidelity Capital Trust, the Property Trustee of such date and of the
principal amount of Securities of that series to be redeemed. In the case of
any redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities, the Company shall furnish
the Trustee with an Officers' Certificate and an Opinion of Counsel
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evidencing compliance with such restriction. Any such notice given to the
Trustee hereunder shall include the information required by Section 11.04
hereof.
SECTION 11.03. Selection of Securities to be Redeemed. If less than
---------------------------------------
all the Securities of any series are to be redeemed (unless all the Securities
of such series and of a specified tenor are to be redeemed or unless such
redemption affects only a single Security all as designated to the Trustee by
the Company), the particular Securities to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series not previously called for redemption, by
such method as the Trustee shall deem fair and appropriate and which may provide
for the selection for redemption of a portion of the principal amount of any
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security. If less than all the
Securities of such series and of a specified tenor are to be redeemed (unless
such redemption affects only a single Security), the particular Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of such series and specified tenor
not previously called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for partial redemption and the principal amount thereof to
be redeemed. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed. If the Company shall so direct, Securities registered in the name of
the Company, any Affiliate or any Subsidiary thereof shall not be included in
the Securities selected for redemption.
SECTION 11.04. Notice of Redemption. Notice of redemption (other
---------------------
than at the Stated Maturity) shall be given by first-class mail, postage
prepaid, mailed not later than the thirtieth day, and not earlier than the
sixtieth day, prior to the date fixed for redemption, to each Holder of
Securities to be redeemed, at the address of such Holder as it appears in the
Securities Register.
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With respect to Securities of each series to be redeemed, each
notice of redemption shall state:
(a) the Redemption Date for Securities of such series;
(b) the redemption price at which Securities of such series are to be
redeemed;
(c) if less than all Outstanding Securities of such particular series
and having the same terms are to be redeemed, the identification (and, in
the case of partial redemption, the respective principal amounts) of the
particular Securities to be redeemed;
(d) that on the date fixed for redemption, the redemption price at
which such Securities are to be redeemed will become due and payable upon
each such Security or portion thereof, and that interest thereon, if any,
shall cease to accrue on and after said date;
(e) the place or places where such Securities are to be surrendered
for payment of the redemption price at which such Securities are to be
redeemed;
(f) that the redemption is for a sinking fund, if such is the case;
(g) such other provisions as may be required in respect of the terms
of a particular series of Securities; and
(h) the CUSIP number if any.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall not be
irrevocable. The notice if mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice. In any case, a failure to give such notice by mail or any
defect in the notice to the Holder of any Security designated for redemption as
a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security.
SECTION 11.05. Deposit of Redemption Price. Prior to 10:00 a.m. New
----------------------------
York City time on the redemption date specified in the notice of redemption
given as provided in Section 11.04, the Company will deposit with the Trustee or
with one or more Paying Agents an amount of money
93
sufficient to redeem on the redemption date all the Securities so called for
redemption at the applicable redemption price.
SECTION 11.06. Payment of Securities Called for Redemption. If any
--------------------------------------------
notice of redemption has been given as provided in Section 11.04, the Securities
or portion of Securities with respect to which such notice has been given shall
become due and payable on the date and at the place or places stated in such
notice at the applicable redemption price. On presentation and surrender of
such Securities at a place of payment in said notice specified, the said
Securities or the specified portions thereof shall be paid and redeemed by the
Company at the applicable redemption price.
Upon presentation of any Security redeemed in part only, the Company
shall execute and the Trustee shall authenticate and deliver to the Holder
thereof, at the expense of the Company, a new Security or Securities of that
same series, of authorized denominations, in aggregate principal amount equal to
the unredeemed portion of the Security so presented and having the same Original
Issue Date, Stated Maturity and terms. If the Global Security is so
surrendered, such new Security will (subject to Section 3.06) also be a new
Global Security.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal of such Security shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
SECTION 11.07. Company's Right of Redemption. Unless otherwise
------------------------------
specified as contemplated by Section 3.01 with respect to the Securities of a
particular series and notwithstanding any additional redemption rights that may
be so specified:
(a) the Company may at any time on or after the date set forth in an
Officer's Certificate pursuant to (S)3.01 or a supplemental indenture, as
applicable, at its option, subject to the terms and conditions of this
Article XI and subject to the Company having received prior approval of the
Federal Reserve if then required under applicable capital guidelines or
policies of the Federal Reserve, redeem the Securities in whole or in part
at any time or from time to time prior to Maturity, at 100% of the
aggregate principal amount of the Securities, plus accrued and unpaid
interest to the Redemption Date; and
94
(b) if a Tax Event or a Capital Treatment Event shall occur and be
continuing, the Company may, at its option and subject to receipt of prior
approval of the Federal Reserve if then required under applicable capital
guidelines or policies of the Federal Reserve and subject to the provisions
of this Article XI, redeem the Securities, in whole, but not in part, at
any time within 90 days after the occurrence of such Tax Event or Capital
Treatment Event, at 100% of the aggregate principal amount of the
Securities plus accrued and unpaid interest to the Redemption Date.
ARTICLE XII
Exchange and Registration Rights
--------------------------------
SECTION 12.01. Exchange. (a) If specified as contemplated by
---------
Section 3.01 for Securities for any series, the Company and a Central Fidelity
Capital Trust holding such Securities shall enter into a registration rights
agreement (a "Registration Agreement") for the benefit of the holders of any
Capital Securities of such Central Fidelity Capital Trust which are not
registered under the Securities Act providing that such Central Fidelity Capital
Trust use its best efforts to exchange such Capital Securities for registered
securities, by means of an exchange offer registration statement (an "Exchange
Offer Registration Statement"), issued by such Central Fidelity Capital Trust
with terms identical in all material respects to the terms of the Capital
Securities (the "Exchange Capital Securities").
(b) In the event that Central Fidelity Capital Trust is successful in
providing Exchange Capital Securities to the holders of Capital Securities as
described in clause (a) of this Section 12.01, the Company shall, in certain
circumstances specified in the Registration Agreement, contemporaneously
exchange the Securities held by or on behalf of such Central Fidelity Capital
Trust for new securities issued by the Company (the "Exchange Securities") with
terms identical in all material respects to the terms of the Securities to such
Capital Securities (except that the interest rate step-up provisions and the
transfer restrictions will be eliminated), and shall further contemporaneously
exchange the Central Fidelity Guarantee then held by the Guarantee Trustee under
the Guarantee Agreement for a new guarantee of the Company (the "Exchange
Guarantee") with terms identical in all material respects to the terms of the
Central Fidelity Guarantee.
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SECTION 12.02. Registration. If specified as contemplated by Section
-------------
3.01 for Securities of any series, the Company and such Central Fidelity Capital
Trust shall (a) file a shelf registration statement under the Securities Act
covering resales of the Capital Securities (the "Shelf Registration Statement"),
(b) use their reasonable best efforts to cause such Shelf Registration Statement
to be declared effective under the Securities Act, and (c) use their reasonable
best efforts to cause such Shelf Registration Statement to remain effective for
as long as specified as contemplated by the Registration Agreement. The
Administrative Trustees shall promptly cause to be delivered to the holders, the
Delaware Trustee and the Property Trustee written notice of their intent to file
such Registration Statement. All costs incurred in connection with the filing
and maintenance of such Registration Statement shall be borne by the Company.
SECTION 12.03. Special Interest. If specified as contemplated by
-----------------
Section 3.01 for Securities of any series, the Company may enter into an
agreement providing that, in the event that (i) an Exchange Offer Registration
Statement is not filed, subject to certain exceptions described in the
Registration Agreement (ii) such Exchange Offer Registration Statement is not
declared effective within the time period contemplated by the applicable
registration rights agreement, unless such Exchange Offer Registration Statement
is not required to be declared effective pursuant to the Registration Agreement,
(iii) the exchange offer pursuant to the Exchange Offer Registration Statement
is not consummated or the Shelf Registration Statement is not declared effective
within the time period contemplated by the applicable registration rights
agreement or (iv) such Exchange Offer Registration Statement or Registration
Statement does not remain effective for as long as contemplated by the
applicable registration rights agreement, the Company shall pay to the relevant
Central Fidelity Capital Trust, and such Central Fidelity Capital Trust shall
pay to the holders of the Capital Securities, an amount of Special Interest
("Special Interst"), which may be either fixed or based on the duration and/or
principal amount of the Securities or the Liquidation Amount of the Capital
Securities affected thereby, all as set forth in the applicable registration
rights agreement.
SECTION 12.04. Compliance with Law. Any registration rights
--------------------
agreement entered into hereunder may provide that any holder of Capital
Securities who is considered to be an Affiliate of the Company or the Central
Fidelity Capital Trust or any underwriter in connection with the issuance and
sale of Capital Securities be barred from
96
participation in the Exchange Offer Registration Statement or other Shelf
Registration Statement, in accordance with applicable law or regulation.
ARTICLE XIII
Sinking Funds
-------------
SECTION 13.01. Applicability of Article. The provisions of this
-------------------------
Article shall be applicable to any sinking fund for the retirement of Securities
of any series except as otherwise specified as contemplated by Section 3.01 for
such Securities.
The minimum amount of any sinking fund payment provided for by the
terms of any Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any sinking fund payment in excess of such minimum
amount which is permitted to be made by the terms of such Securities of any
series is herein referred to as an "optional sinking fund payment". If provided
for by the terms of any Securities of any series, the case amount of any sinking
fund payment may be subject to reduction as provided in Section 13.02. Each
sinking fund payment shall be applied to the redemption (or purchase by tender
or otherwise) of Securities of any series as provided for by the terms of such
Securities.
SECTION 13.02. Satisfaction of Sinking Fund Payments with Securities.
------------------------------------------------------
In lieu of making all or any part of a mandatory sinking fund payment with
respect to any Securities of a series in cash, the Company may at its option, at
any time no more than 16 months and no less than 45 days prior to the date on
which such sinking fund payment is due, deliver to the Trustee Securities of
such series (together with the unmatured Coupons, if any, appertaining thereto)
theretofore purchased or otherwise acquired by the Company, except Securities of
such series that have been redeemed through the application of mandatory or
optional sinking fund payments pursuant to the terms of the Securities of such
series, accompanied by a Company Order instructing the Trustee to credit such
obligations and stating that the Securities of such series were originally
issued by the Company by way of bona fide sale or other negotiation for value;
provided that the Securities to be so credited have not been previously so
--------
credited. The Securities to be so credited shall be received and credited for
such purpose by the Trustee at the redemption price for such Securities, as
specified in the Securities so to be redeemed, for redemption through operation
of the sinking
97
fund and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 13.03. Redemption of Securities for Sinking Fund. Not less
------------------------------------------
than 45 days prior to each sinking fund payment date for any series of
securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash in the currency in which the
Securities of such series are payable (except as provided pursuant to Section
3.01) and the portion thereof, if any, which is to be satisfied by delivering
and crediting Securities pursuant to Section 13.02 and will also deliver to the
Trustee any Securities to be so delivered. Such Certificate shall be irrevocable
and upon its delivery the Company shall be obligated to make the cash payment or
payments therein referred to, if any, on or before the succeeding sinking fund
payment date. In the case of the failure of the Company to deliver such
Certificate (or, as required by this Indenture, the Securities and coupons, if
any, specified in such Certificate) by the due date therefor, the sinking fund
payment due on the succeeding sinking fund payment date for such series shall be
paid entirely in cash and shall be sufficient to redeem the principal amount of
the Securities of such series subject to a mandatory sinking fund payment
without the right to deliver or credit securities as provided in Section 13.02
and without the right to make the optional sinking fund payment with respect to
such series at such time.
Any sinking fund payment or payments (mandatory or optional) made in
cash plus any unused balance of any preceding sinking fund payments made with
respect to the Securities of any particular series shall be applied by the
Trustee (or by the Company if the Company is acting as its own Paying Agent) on
the sinking fund payment date on which such payment is made (or, if such payment
is made before a sinking fund payment date, on the sinking fund payment date
immediately following the date of such payment) to the redemption of Securities
of such series at the redemption price specified in such Securities with respect
to the sinking fund. Any sinking fund moneys not so applied or allocated by the
Trustee (or by the Company if the Company is acting as its own Paying Agent,
segregated and held in trust as provided in Section 10.03) for such series and
together with such payment (or such amount so segregated) shall be applied in
accordance with the provisions of this Section 13.03. Any and all sinking fund
moneys with respect to the Securities of any particular series held by the
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Trustee (or if the Company is acting as its own Paying Agent, segregated and
held in trust as provided in Section 10.03) on the last sinking fund payment
date with respect to Securities of such series and not held for the payment or
redemption of particular Securities of such series shall be applied by the
Trustee (or by the Company if the Company is acting as its own Paying Agent),
together with other moneys, if necessary, to be deposited (or segregated)
sufficient for the purpose, to the payment of the principal of the Securities of
such series at Maturity. The Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 11.03 and
cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 11.04. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Section 11.06. On or before each sinking fund
payment date, the Company shall pay to the Trustee (or, if the Company is acting
as its own Paying Agent, the Company shall segregate and hold in trust as
provided in Section 10.03) in cash a sum in the currency in which Securities of
such series are payable (except as provided pursuant to Section 3.01) equal to
the principal and any interest accrued to the redemption date for Securities or
portions thereof to be redeemed on such sinking fund payment date pursuant to
this Section 13.03.
Neither the Trustee nor the Company shall redeem any Securities of a
series with sinking fund moneys or mail any notice of redemption of Securities
of such series by operation of the sinking fund for such series during the
continuance of a default in payment of interest, if any, on any Securities of
such series or of any Event of Default (other than an Event of Default occurring
as a consequence of this paragraph) with respect to the Securities of such
series, except that if the notice of redemption shall have been provided in
accordance with the provisions hereof, the Trustee (or the Company if the
Company is then acting as its own Paying Agent) shall redeem such Securities if
cash sufficient for that purpose shall be deposited with the Trustee (or
segregated by the Company) for that purpose in accordance with the terms of this
Article XIII. Except as aforesaid, any moneys in the sinking fund for such
series at the time when any such default or Event of Default shall occur and any
moneys thereafter paid into such sinking fund shall, during the continuance of
such default or Event of Default, be held as security for the payment of the
Securities and coupons, if any, of such series; provided, however, that in case
-------- -------
such default or Event of Default shall have been cured or waived herein, such
moneys shall
99
thereafter be applied on the next sinking fund payment date for the Securities
of such series on which such moneys may be applied pursuant to the provisions of
this Section 13.03.
ARTICLE XIV
Subordination of Securities
---------------------------
SECTION 14.01. Securities Subordinate to Senior Debt. The Company
--------------------------------------
covenants and agrees, and each Holder of a Security, by its acceptance thereof,
likewise covenants and agrees, that, to the extent and in the manner hereinafter
set forth in this Article, the payment of the principal of and interest
(including any Additional Interest) on each and all of the Securities are hereby
expressly made subordinate and junior in right of payment to the prior payment
in full of all amounts then due and payable in respect of all Senior Debt.
SECTION 14.02. Payment Over of Proceeds Upon Dissolution, etc. In
-----------------------------------------------
the event of (a) any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company, its creditors or its property, (b) any
proceeding for the liquidation, dissolution, or other winding up of the Company,
voluntary or involuntary, whether or not involving insolvency or bankruptcy
proceedings, (c) any assignment by the Company for the benefit of creditors or
(d) any other marshaling of the assets of the Company (each such event, if any,
herein sometimes referred to as a "Proceeding"), then the holders of Senior Debt
shall be entitled to receive payment in full of principal of and interest, if
any, on such Senior Debt, or provision shall be made for such payment in cash or
cash equivalents or otherwise in a manner satisfactory to the holders of Senior
Debt, before the Holders of the Securities are entitled to receive or retain any
payment or distribution of any kind or character, whether in cash, property or
securities (including any payment or distribution which may be payable or
deliverable by reason of the payment of any other debt of the Company (including
any series of the Securities) subordinated to the payment of the Securities,
such payment or distribution being hereinafter referred to as a "Junior
Subordinated Payment"), on account of principal of or interest (including any
Additional Interest) on the Securities or on account of the purchase or other
acquisition of Securities by the Company or any Subsidiary and to that end the
holders of Senior Debt shall be entitled to receive, for application to the
payment thereof, any payment or distribution of any kind or
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character, whether in cash, property or securities, including any Junior
Subordinated Payment, which may be payable or deliverable in respect of the
Securities in any such Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, including any Junior Subordinated
Payment, before all Senior Debt is paid in full or payment thereof is provided
for in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt, and if such fact shall, at or prior to the time of such
payment or distribution, have been made known to a Responsible Officer of the
Trustee or, as the case may be, such Holder, then and in such event such payment
or distribution shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
Person making payment or distribution of assets of the Company for application
to the payment of all Senior Debt remaining unpaid, to the extent necessary to
pay all Senior Debt in full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Debt.
For purposes of this Article only, the words "any payment or
distribution of any kind or character, whether in cash, property or securities"
shall not be deemed to include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other corporation provided for
by a plan or reorganization or readjustment, in each case, which securities are
subordinated in right of payment to all then outstanding Senior Debt to
substantially the same extent as, or to a greater extent than, the Securities
are so subordinated as provided in this Article. The consolidation of the
Company with, or the merger of the Company into, another Person or the
liquidation or dissolution of the Company following the sale of all or
substantially all of its properties and assets as an entirety to another Person
or the liquidation or dissolution of the Company following the sale of all or
substantially all of its properties and assets as an entirety to another Person
upon the terms and conditions set forth in Article VIII shall not be deemed a
Proceeding for the purposes of this Section if the Person formed by such
consolidation or into which the Company is merged or the Person which acquires
by sale such properties and assets substantially as an entirety, as the case may
be, shall, as a part of such consolidation, merger, or sale comply with the
conditions set forth in Article VIII.
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SECTION 14.03. Prior Payment to Senior Debt Upon Acceleration of
-------------------------------------------------
Securities. In the event that any Securities are declared due and payable
-----------
before their Stated Maturity, then and in such event the holders of the Senior
Debt outstanding at the time such Securities so become due and payable shall
first be entitled to receive payment in full of all amounts due on or in respect
of such Senior Debt (including any amounts due upon acceleration), or provision
shall be made for such payment in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of Senior Debt, before the Holders of the
Securities will be entitled to receive or retain any payment or distribution of
any kind or character, whether in cash, property or securities (including any
Junior Subordinated Payment) by the Company on account of the principal of or
interest (including any Additional Interest) on the Securities or on account of
the purchase or other acquisition of Securities by the Company or any
Subsidiary; provided, however, that nothing in this Section shall prevent the
-------- -------
satisfaction of any sinking fund payment in accordance with this Indenture or as
otherwise specified as contemplated by Section 3.01 for the Securities of any
series by delivering and crediting pursuant to Section 13.02 or as otherwise
specified as contemplated by Section 3.01 for the Securities of any series
Securities which have been acquired (upon redemption or otherwise) prior to such
declaration of acceleration.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to a Responsible Officer of the
Trustee or, as the case may be, such Holder, then and in such event such payment
shall be paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 14.02 would be applicable.
SECTION 14.04. No Payment When Senior Debt in Default. (a) In the
---------------------------------------
event and during the continuation of any default by the Company in the payment
of principal of or interest, if any, on any Senior Debt, or in the event that
any event of default with respect to any Senior Debt shall have occurred and be
continuing and shall have resulted in such Senior Debt becoming or being
declared due and payable prior to the date on which it would otherwise have
become due and payable, unless and until such event of default shall have been
cured or waived or shall have ceased to exist and such acceleration shall have
been rescinded or
102
annulled, or (b) in the event any judicial proceeding shall be pending with
respect to any such default in payment or event of default, then no direct or
indirect payment or distribution of any kind or character, whether in cash,
property or securities (including any Junior Subordinated Payment), by set-off
or otherwise, shall be made or agreed to be made by the Company on account of
principal or interest (including any Additional Interest) on the Securities or
on account of any redemption, repayment, retirement, purchase or other
acquisition of any Securities by the Company or any Subsidiary; provided,
--------
however, that nothing in this Section shall prevent the satisfaction of any
-------
sinking fund payment in accordance with this Indenture or as otherwise specified
as contemplated by Section 3.01 for the Securities of any series by delivering
and crediting pursuant to Section 13.02 or as otherwise specified as
contemplated by Section 3.01 for the Securities of any series Securities which
have been acquired (upon redemption or otherwise) prior to such default in
payment or event of default.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to a Responsible Officer of the
Trustee or, as the case may be, such Holder, then and in such event such payment
shall be paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 14.02 would be applicable.
SECTION 14.05. Payment Permitted If No Default. Nothing contained in
--------------------------------
this Article or elsewhere in this Indenture or in any of the Securities shall
prevent (a) the Company, at any time except during the pendency of any
Proceeding referred to in Section 14.02 or under the conditions described in
Sections 14.03 and 14.04, from making payments at any time of principal of or
interest (including any Additional Interest) on the Securities, or (b) the
application by the Trustee of any money deposited with it hereunder to the
payment of or on account of the principal of or interest (including any
Additional Interest) on the Securities or the retention of such payment by the
Holders, if, at the time of such payment by the Company or application by the
Trustee, as the case may be, it did not have knowledge that such payment or
application, as the case may be, would have been prohibited by the provisions of
this Article.
103
SECTION 14.06. Subrogation to Rights of Holders of Senior Debt.
------------------------------------------------
Subject to the payment in full of all amounts due on all Senior Debt to the
extent required under Sections 14.02 and 14.03 of this Indenture, or the
provision for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt, the Holders of the Securities shall
be subrogated to the extent of the payments or distributions made to the holders
of such Senior Debt pursuant to the provisions of this Article (equally and
ratably with the holders of all indebtedness of the Company which by its express
terms is subordinated to Senior Debt of the Company to substantially the same
extent as the Securities are subordinated to the Senior Debt and is entitled to
like rights of subrogation by reason of any payments or distributions made to
holders of such Senior Debt) to the rights of the holders of such Senior Debt to
receive payments and distributions of cash, property and securities applicable
to the Senior Debt until the principal of and interest on the Securities shall
be paid in full. For purposes of such subrogation or assignment, no payments or
distributions to the holders of the Senior Debt of any cash, property or
securities to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article, and no payments over
pursuant to the provisions of this Article to the holders of Senior Debt by
Holders of the Securities or the Trustee, shall, as among the Company, its
creditors other than holders of Senior Debt, and the Holders of the Securities,
be deemed to be a payment or distribution by the Company to or on account of the
Senior Debt.
SECTION 14.07. Provisions Solely to Define Relative Rights. The
--------------------------------------------
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities on the one hand
and the holders of Senior Debt on the other hand. Nothing contained in this
Article or elsewhere in this Indenture or in the Securities is intended to or
shall (a) impair, as between the Company and the Holders of the Securities, the
obligations of the Company, which are absolute and unconditional, to pay to the
Holders of the Securities the principal of and interest (including any
Additional Interest) on the Securities as and when the same shall become due and
payable in accordance with their terms; or (b) affect the relative rights
against the Company of the Holders of the Securities and creditors of the
Company other than their rights in relation to the holders of Senior Debt; or
(c) prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default under this Indenture
including, without limitation, filing and voting claims in any
104
Proceeding, subject to the rights, if any, under this Article of the holders of
Senior Debt to receive cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder.
SECTION 14.08. Trustee to Effectuate Subordination. Each Holder of a
------------------------------------
Security by his or her acceptance thereof authorizes and directs the Trustee on
his or her behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination provided in this Article and
appoints the Trustee his or her attorney-in-fact for any and all such purposes.
SECTION 14.09. No Waiver of Subordination Provisions. No right of
--------------------------------------
any present or future holder of any Senior Debt to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the Company
with the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof that any such holder may have or be otherwise charged with.
SECTION 14.10. Notice to Trustee. The Company shall give prompt
------------------
written notice to the Trustee of any fact known to the Company which would
prohibit the making of any payment to or by the Trustee in respect of the
Securities. Notwithstanding the provisions of this Article or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment to or
by the Trustee in respect of the Securities, unless and until the Trustee shall
have received written notice thereof from the Company or a holder of Senior Debt
or from any trustee, agent or representative therefor (whether or not the facts
contained in such notice are true); provided, however, that if the Trustee shall
-------- -------
not have received the notice provided for in this Section at least two Business
Days prior to the date upon which by the terms hereof any monies may become
payable for any purpose (including, without limitation, the payment of the
principal of or interest (including any Additional Interest) on any Security),
then, anything herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such monies and to apply the same
to the purpose for which they were received and shall not be affected by any
notice to the contrary which may be received by it within two Business Days
prior to such date.
105
SECTION 14.11. Reliance on Judicial Order or Certificate of
--------------------------------------------
Liquidating Agent. Upon any payment or distribution of assets of the Company
------------------
referred to in this Article, the Trustee, subject to the provisions of Article
VI, and the Holders of the Securities shall be entitled to conclusively rely
upon any order or decree entered by any court of competent jurisdiction in which
such Proceeding is pending, or a certificate of the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee for the benefit of creditors,
agent or other Person making such payment or distribution, delivered to the
Trustee or to the Holders of Securities, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
the Senior Debt and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article.
SECTION 14.12. Trustee Not Fiduciary for Holders of Senior Debt. The
-------------------------------------------------
Trustee, in its capacity as trustee under this Indenture, shall not be deemed to
owe any fiduciary duty to the holders of Senior Debt and shall not be liable to
any such holders if it shall in good faith mistakenly pay over or distribute to
Holders of Securities or to the Company or to any other Person cash, property or
securities to which any holders of Senior Debt shall be entitled by virtue of
this Article or otherwise.
SECTION 14.13. Rights of Trustee as Holder of Senior Debt;
-------------------------------------------
Preservation of Trustee's Rights. The Trustee in its individual capacity shall
---------------------------------
be entitled to all the rights set forth in this Article with respect to any
Senior Debt which may at any time be held by it, to the same extent as any other
holder of Senior Debt, and nothing in this Indenture shall deprive the Trustee
of any of its rights as such holder.
SECTION 14.14. Article Applicable to Paying Agents. In case at any
------------------------------------
time any Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term "Trustee" as used in this Article
shall in such case (unless the context otherwise requires) be construed as
extending to and including such Paying Agent within its meaning as fully for all
intents and purposes as if such Paying Agent were named in this Article in
addition to or in place of the Trustee.
SECTION 14.15. Certain Conversions or Exchanges Deemed Payment. For
------------------------------------------------
purposes of this Article XIV only, (a) the issuance and delivery of junior
securities (as
106
defined below) upon conversion or exchange of Securities shall
not be deemed to constitute a payment or distribution on account of the
principal of or interest (including any Additional Interest) on the Securities
or on account of the purchase or other acquisition of Securities, and (b) the
payment, issuance or delivery of cash, property or securities (other than junior
securities) upon conversion or exchange of a Security shall be deemed to
constitute payment on account of the principal of such Security. For the
purposes of this Section, the term "junior securities" means (i) shares of any
stock of any class of the Company and (ii) securities of the Company which are
subordinated in right of payment to all Senior Debt which may be outstanding at
the time of issuance or delivery of such securities to substantially the same
extent as, or to a greater extent than, the Securities are so subordinated as
provided in this Article.
107
This instrument may be executed in any number of counterparts, each of
which when 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 Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first written above.
CENTRAL FIDELITY BANKS, INC.
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Financial
Officer and
Corporate Executive
Vice President
[Seal]
THE BANK OF NEW YORK, as Trustee
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Assistant
Treasurer
[Seal]