1
EXHIBIT 4.1
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NATIONAL COMMERCE BANCORPORATION
as Issuer
INDENTURE
Dated as of March 27, 1997
THE BANK OF NEW YORK
as Trustee
SUBORDINATED DEBT SECURITIES
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2
TIE-SHEET
of provisions of Trust Indenture Act of 1939 with Indenture dated as of March
27, 1997 between National Commerce Bancorporation, as Issuer, and The Bank of
New York, as Trustee:
ACT SECTION INDENTURE SECTION
310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
310(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
310(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
310(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
310(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.08; 6.10(a)(b) and (d)
310(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311(a) and (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13
311(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.01; 4.02(a)
312(b) and (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.02(b) and (c)
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.04(a)
313(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
313(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.04(a)
313(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.04(a)
313(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.04(b)
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.03
314(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
314(c)(1) and (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.06
314(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
314(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
314(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.06
314(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
315(a)(c) and (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.08
315(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.09
316(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.01; 5.07
316(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
316(a) last sentence . . . . . . . . . . . . . . . . . . . . . . . . . . 7.04
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.04
317(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.02
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.04(a)
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.08
THIS TIE-SHEET IS NOT PART OF THE INDENTURE AS EXECUTED.
3
TABLE OF CONTENTS
Page
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Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Authorization of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Compliance with Legal Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Purpose of and Consideration for Indenture . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
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Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Bankruptcy Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Capital Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Capital Securities Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Common Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Common Securities Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Custodian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Debt Security or Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Debt Security Register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Institutional Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
National Commerce Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Mortgage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Original Issue Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Original Issue Discount Security . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ii
4
outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Principal Office of the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Securityholder, holder of Debt Securities . . . . . . . . . . . . . . . . . . . . . . 6
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Trust Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE II
DEBT SECURITIES
SECTION 2.01. Forms Generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
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SECTION 2.02. Form of Trustee's Certificate of Authentication. . . . . . . . . . . . . . . 8
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SECTION 2.03. Amount Unlimited; Issuable in Series. . . . . . . . . . . . . . . . . . . . 8
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SECTION 2.04. Authentication and Dating. . . . . . . . . . . . . . . . . . . . . . . . . . 10
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SECTION 2.05. Date and Denomination of Debt Securities. . . . . . . . . . . . . . . . . . 11
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SECTION 2.06. Execution of Debt Securities. . . . . . . . . . . . . . . . . . . . . . . . 13
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SECTION 2.07. Exchange and Registration of Transfer of Debt Securities. . . . . . . . . . 13
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SECTION 2.08. Mutilated, Destroyed, Lost or Stolen Debt Securities. . . . . . . . . . . . 15
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SECTION 2.09. Temporary Debt Securities. . . . . . . . . . . . . . . . . . . . . . . . . . 16
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SECTION 2.10. Cancellation of Debt Securities Paid, etc. . . . . . . . . . . . . . . . . . 17
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SECTION 2.11. Global Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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SECTION 2.12. CUSIP Numbers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01. Payment of Principal, Premium and Interest. . . . . . . . . . . . . . . . . 18
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SECTION 3.02. Offices for Notices and Payments, etc. . . . . . . . . . . . . . . . . . . . 19
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SECTION 3.03. Appointments to Fill Vacancies in Trustee's Office. . . . . . . . . . . . . 19
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SECTION 3.04. Provision as to Paying Agent. . . . . . . . . . . . . . . . . . . . . . . . 19
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SECTION 3.05. Certificate to Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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SECTION 3.06. Compliance with Consolidation Provisions. . . . . . . . . . . . . . . . . . 21
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SECTION 3.07. Limitation on Dividends. . . . . . . . . . . . . . . . . . . . . . . . . . . 21
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SECTION 3.08. Covenants as to National Commerce Trusts. . . . . . . . . . . . . . . . . . 21
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SECTION 3.09. Calculation of Original Issue Discount. . . . . . . . . . . . . . . . . . . 22
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ARTICLE IV
SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE
TRUSTEE
SECTION 4.01. Securityholders' Lists. . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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SECTION 4.02. Preservation and Disclosure of Lists. . . . . . . . . . . . . . . . . . . . 22
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SECTION 4.03. [Reserved] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 4.04. Reports by the Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . 24
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SECTION 4.05. Reports by the Company. . . . . . . . . . . . . . . . . . . . . . . . . . . 24
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SECTION 4.06. Statement as to Compliance. . . . . . . . . . . . . . . . . . . . . . . . . 25
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SECTION 4.07. Statement by Officers as to Default. . . . . . . . . . . . . . . . . . . . . 25
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ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS UPON AN EVENT OF
DEFAULT
SECTION 5.01. Events of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
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SECTION 5.02. Payment of Debt Securities on Default; Suit Therefor. . . . . . . . . . . . 27
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SECTION 5.03. Application of Moneys Collected by Trustee. . . . . . . . . . . . . . . . . 29
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SECTION 5.04. Proceedings by Securityholders. . . . . . . . . . . . . . . . . . . . . . . 29
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SECTION 5.05. Proceedings by Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . 30
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SECTION 5.06. Remedies Cumulative and Continuing. . . . . . . . . . . . . . . . . . . . . 30
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SECTION 5.07. Direction of Proceedings and Waiver of Defaults by Majority of
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Securityholders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
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SECTION 5.08. Notice of Defaults. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
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SECTION 5.09. Undertaking to Pay Costs. . . . . . . . . . . . . . . . . . . . . . . . . . 31
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ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of Trustee. . . . . . . . . . . . . . . . . . . 32
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SECTION 6.02. Reliance on Documents, Opinions, etc. . . . . . . . . . . . . . . . . . . . 33
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SECTION 6.03. No Responsibility for Recitals, etc. . . . . . . . . . . . . . . . . . . . . 34
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SECTION 6.04. Trustee, Authenticating Agent, Paying Agents, Transfer Agents or
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Registrar May Own Debt Securities . . . . . . . . . . . . . . . . . . . 34
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SECTION 6.05. Moneys to be Held in Trust. . . . . . . . . . . . . . . . . . . . . . . . . 35
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SECTION 6.06. Compensation and Expenses of Trustee. . . . . . . . . . . . . . . . . . . . 35
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SECTION 6.07. Officers' Certificate as Evidence. . . . . . . . . . . . . . . . . . . . . . 36
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SECTION 6.08. Conflicting Interest of Trustee. . . . . . . . . . . . . . . . . . . . . . . 36
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SECTION 6.09. Eligibility of Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . 36
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SECTION 6.10. Resignation or Removal of Trustee. . . . . . . . . . . . . . . . . . . . . . 36
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SECTION 6.11. Acceptance by Successor Trustee. . . . . . . . . . . . . . . . . . . . . . . 38
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SECTION 6.12. Succession by Merger, etc. . . . . . . . . . . . . . . . . . . . . . . . . . 39
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SECTION 6.13. Limitation on Rights of Trustee as a Creditor. . . . . . . . . . . . . . . . 39
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SECTION 6.14. Authenticating Agents. . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
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ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Action by Securityholders. . . . . . . . . . . . . . . . . . . . . . . . . . 40
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SECTION 7.02. Proof of Execution by Securityholders. . . . . . . . . . . . . . . . . . . . 41
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SECTION 7.03. Who Are Deemed Absolute Owners. . . . . . . . . . . . . . . . . . . . . . . 41
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SECTION 7.04. Debt Securities Owned by Company Deemed Not Outstanding. . . . . . . . . . . 42
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SECTION 7.05. Revocation of Consents; Future Holders Bound. . . . . . . . . . . . . . . . 42
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ARTICLE VIII
SECURITYHOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
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SECTION 8.02. Call of Meetings by Trustee. . . . . . . . . . . . . . . . . . . . . . . . . 43
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SECTION 8.03. Call of Meetings by Company or Securityholders. . . . . . . . . . . . . . . 43
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SECTION 8.04. Qualifications for Voting. . . . . . . . . . . . . . . . . . . . . . . . . . 44
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SECTION 8.05. Regulations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
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SECTION 8.06. Voting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
------
SECTION 8.07. Quorum; Actions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
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ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures without Consent of Securityholders. . . . . . . . . 46
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SECTION 9.02. Supplemental Indentures with Consent of Securityholders. . . . . . . . . . . 47
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SECTION 9.03. Compliance with Trust Indenture Act; Effect of Supplemental Indentures. . . 48
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SECTION 9.04. Notation on Debt Securities. . . . . . . . . . . . . . . . . . . . . . . . . 49
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SECTION 9.05. Evidence of Compliance of Supplemental Indenture to be Furnished
-----------------------------------------------------------------
to Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
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ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.01. Company May Consolidate, etc., on Certain Terms. . . . . . . . . . . . . . . 49
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SECTION 10.02. Successor Entity to be Substituted. . . . . . . . . . . . . . . . . . . . . 50
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SECTION 10.03. Opinion of Counsel to be Given to Trustee. . . . . . . . . . . . . . . . . 50
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ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. Discharge of Indenture. . . . . . . . . . . . . . . . . . . . . . . . . . . 51
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SECTION 11.02. Deposited Moneys to be Held in Trust by Trustee. . . . . . . . . . . . . . 51
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SECTION 11.03. Paying Agent to Repay Moneys Held. . . . . . . . . . . . . . . . . . . . . 52
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SECTION 11.04. Return of Unclaimed Moneys. . . . . . . . . . . . . . . . . . . . . . . . . 52
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ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Indenture and Debt Securities Solely Corporate Obligations. . . . . . . . . 52
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ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
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SECTION 13.02. Official Acts by Successor Entity. . . . . . . . . . . . . . . . . . . . . 53
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SECTION 13.03. Surrender of Company Powers. . . . . . . . . . . . . . . . . . . . . . . . 53
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SECTION 13.04. Addresses for Notices, etc. . . . . . . . . . . . . . . . . . . . . . . . . 53
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SECTION 13.05. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
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SECTION 13.06. Evidence of Compliance with Conditions Precedent. . . . . . . . . . . . . . 53
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SECTION 13.07. Non-Business Days. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
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SECTION 13.08. Trust Indenture Act to Control. . . . . . . . . . . . . . . . . . . . . . . 54
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SECTION 13.09. Table of Contents, Headings, etc. . . . . . . . . . . . . . . . . . . . . . 54
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SECTION 13.10. Execution in Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . 54
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SECTION 13.11. Separability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
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SECTION 13.12. Assignment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
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SECTION 13.13. Acknowledgment of Rights. . . . . . . . . . . . . . . . . . . . . . . . . . 55
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ARTICLE XIV
REDEMPTION OF SECURITIES -- MANDATORY AND OPTIONAL SINKING FUND
SECTION 14.01. Applicability of Article. . . . . . . . . . . . . . . . . . . . . . . . . . 55
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SECTION 14.02. Notice of Redemption; Selection of Debt Securities. . . . . . . . . . . . . 55
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SECTION 14.03. Payment of Debt Securities Called for Redemption. . . . . . . . . . . . . . 56
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SECTION 14.04. Mandatory and Optional Sinking Fund. . . . . . . . . . . . . . . . . . . . 57
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ARTICLE XV
SUBORDINATION OF DEBT SECURITIES
SECTION 15.01. Agreement to Subordinate. . . . . . . . . . . . . . . . . . . . . . . . . . 59
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SECTION 15.02. Default on Senior Indebtedness. . . . . . . . . . . . . . . . . . . . . . . 59
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SECTION 15.03. Liquidation; Dissolution; Bankruptcy. . . . . . . . . . . . . . . . . . . . 60
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SECTION 15.04. Subrogation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
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SECTION 15.05. Trustee to Effectuate Subordination. . . . . . . . . . . . . . . . . . . . 62
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SECTION 15.06. Notice by the Company. . . . . . . . . . . . . . . . . . . . . . . . . . . 62
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SECTION 15.07. Reliance on Judicial Order or Certificate of Liquidating Agent. . . . . . . 63
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SECTION 15.08. Rights of the Trustee; Holders of Senior Indebtedness. . . . . . . . . . . 63
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SECTION 15.09. Subordination May Not Be Impaired. . . . . . . . . . . . . . . . . . . . . 63
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THIS INDENTURE, dated as of March 27, 1997, between National
Commerce Bancorporation, a Tennessee corporation (hereinafter sometimes called
the "Company"), and The Bank of New York, a New York banking corporation, as
trustee (hereinafter sometimes called the "Trustee"),
W I T N E S S E T H :
WHEREAS, for its lawful corporate purposes, the Company has
duly authorized the issue from time to time of its subordinated unsecured
debentures, notes or other evidence of indebtedness to be issued in one or more
series (the "Debt Securities") up to such principal amount or amounts as may
from time to time be authorized in accordance with the terms of this Indenture
and, to provide the terms and conditions upon which the Debt Securities are to
be authenticated, issued and delivered, the Company has duly authorized the
execution of this Indenture; and
WHEREAS, all acts and things necessary to make this Indenture
a valid agreement according to its terms, have been done and performed;
NOW, THEREFORE, This Indenture Witnesseth:
In consideration of the premises, and the purchase of the Debt
Securities by the holders thereof, the Company covenants and agrees with the
Trustee for the equal and proportionate benefit of the respective holders from
time to time of the Debt Securities or of a series thereof, as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions.
The terms defined in this Section 1.01 (except as herein
otherwise expressly provided or unless the context otherwise requires) for all
purposes of this Indenture and of any indenture supplemental hereto shall have
the respective meanings specified in this Section 1.01. All other terms used
in this Indenture which are defined in the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), or which are by reference therein defined
in the Securities Act of 1933, as amended (the "Securities Act"), shall (except
as herein otherwise expressly provided or unless the context otherwise
requires) have the meanings assigned to such terms in said Trust Indenture Act
and in said Securities Act as in force at the date of this Indenture as
originally executed. All accounting terms used herein and not expressly
defined shall have the meanings assigned to such terms in accordance with
generally accepted accounting principles and the term "generally accepted
accounting principles" means such accounting principles as are generally
accepted at the time of any computation. 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. The
words "include," "includes" and "including" shall be deemed to be followed by
the phrase "without limitation."
"Affiliate" means, with respect to a specified Person, (a) any
Person directly or indirectly owning, controlling or holding with power to vote
10% or more of the outstanding voting securities or other ownership interests
of the specified Person, (b) any Person 10% or more of whose outstanding voting
securities or other ownership interests are directly or indirectly owned,
controlled or held with power to vote by the specified Person, (c) any Person
directly or indirectly controlling, controlled by, or under common control with
the specified Person, (d) a partnership in which the specified Person is a
general partner, (e) any executive officer or director of the specified Person,
and (f) if the specified Person is an individual, any entity of which the
specified Person is an executive officer, director or general partner.
"Authenticating Agent" shall mean any agent or agents of the
Trustee which at the time shall be appointed and acting pursuant to Section
6.14.
"Bankruptcy Law" shall mean Title 11, U.S. Code, or any
similar federal or state law for the relief of debtors.
"Board of Directors" shall mean the board of directors or the
executive committee or any other duly authorized designated officers of the
Company.
"Board Resolution" shall mean a copy of a resolution certified
by the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification and delivered to
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the Trustee.
"Business Day" shall mean, with respect to any series of Debt
Securities, any day other than a Saturday, Sunday or any other day on which
banking institutions in New York City (in the State of New York) are permitted
or required by any applicable law to close.
"Capital Securities" shall mean undivided preferred beneficial
interests in the assets of a National Commerce Trust which rank pari passu with
Common Securities issued by such National Commerce Trust; provided, however,
that upon the occurrence of an Event of Default (as defined in the Declaration
with respect to such National Commerce Trust), the rights of holders of such
Common Securities to payment in respect of distributions and payments upon
liquidation, redemption and otherwise are subordinated to the rights of holders
of such Capital Securities.
"Capital Securities Guarantee" shall mean, in respect of any
National Commerce Trust, any guarantee that the Company may enter into with The
Bank of New York or other Persons that operates directly or indirectly for the
benefit of holders of Capital Securities of such National Commerce Trust.
"Certificate" shall mean a certificate signed by any one of
the principal executive officer, the principal financial officer or the
principal accounting officer of the Company.
"Common Securities" shall mean undivided beneficial interests
in the assets of a National Commerce Trust which rank pari passu with Capital
Securities issued by such National Commerce Trust; provided, however, that upon
the occurrence of an Event of Default (as defined in the Declaration with
respect to such National Commerce Trust), the rights of holders of such Common
Securities to payment in respect of distributions and payments upon
liquidation, redemption and otherwise are subordinated to the rights of holders
of such Capital Securities.
"Common Securities Guarantee" shall mean, in respect of any
National Commerce Trust, any guarantee that the Company may enter into with any
Person or Persons and that operates directly or indirectly for the benefit of
holders of Common Securities of such National Commerce Trust.
"Company" shall mean National Commerce Bancorporation, a
Tennessee corporation, and, subject to the provisions of Article X, shall
include its successors and assigns.
"Custodian" shall mean any receiver, trustee, assignee,
liquidator, or similar official under any Bankruptcy Law.
"Debt Security" or "Debt Securities" shall have the meaning
stated in the first recital of this Indenture and more particularly means any
debt security or debt securities, as
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the case may be, authenticated and delivered under this Indenture.
"Debt Security Register" shall have the meaning specified in
Section 2.07.
"Declaration," with respect to a National Commerce Trust,
shall mean the Amended and Restated Declaration of Trust of such National
Commerce Trust, as amended or supplemented from time to time.
"Default" means any event, act or condition that with notice
or lapse of time, or both, would constitute an Event of Default.
"Depositary" shall mean, with respect to Debt Securities of
any series for which the Company shall determine that such Debt Securities will
be issued as a Global Security, The Depository Trust Company, New York, New
York, another clearing agency, or any successor registered as a clearing agency
under the Exchange Act, or other applicable statute or regulation, which, in
each case, shall be designated by the Company pursuant to either Section 2.03
or 2.11.
"Event of Default" shall mean any event specified in Section
5.01, continued for the period of time, if any, and after the giving of the
notice, if any, therein designated.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Global Security" shall mean, with respect to any series of
Debt Securities, a Debt Security executed by the Company and delivered by the
Trustee to the Depositary or pursuant to the Depositary's instruction, all in
accordance with this Indenture, which shall be registered in the name of the
Depositary or its nominee.
"Indenture" shall mean this instrument as originally executed
or, if amended or supplemented as herein provided, as so amended or
supplemented, or both, and shall include the form and terms of particular
series of Debt Securities established as contemplated hereunder.
"Institutional Trustee" has the meaning set forth in the
Declaration of the applicable National Commerce Trust.
"Interest" shall mean, when used with respect to noninterest
bearing Debt Securities, interest payable after maturity.
"Interest Payment Date," when used with respect to any
installment of interest on a Debt Security of a particular series, shall mean
the date specified in such Debt Security or in a Board Resolution or in an
indenture supplemental hereto with respect to such series as the fixed date on
which an installment of interest with respect to Debt Securities of that series
is due and payable.
"National Commerce Trust" shall mean a Delaware business
trust, or any other
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similar trust created for the purpose of issuing Capital Securities in
connection with the issuance of Debt Securities under this Indenture, of which
the Company is the sponsor.
"Mortgage" shall mean and include any mortgage, pledge, lien,
security interest, conditional sale or other title retention agreement or other
similar encumbrance.
"Officers' Certificate" shall mean a certificate signed by the
Chairman of the Board, the Vice Chairman, the President, any Managing Director
or any Vice President, and by the Treasurer, an Assistant Treasurer, the
Comptroller, an Assistant Comptroller, the Secretary or an Assistant Secretary
of the Company, and delivered to the Trustee. Each such certificate shall
include the statements provided for in Section 13.06 if and to the extent
required by the provisions of such Section.
"Opinion of Counsel" shall mean an opinion in writing signed
by legal counsel, who may be an employee of or counsel to the Company, or may
be other counsel satisfactory to the Trustee. Each such opinion shall include
the statements provided for in Section 13.06 if and to the extent required by
the provisions of such Section.
"Original Issue Date" of any Debt Security (or any portion
thereof) shall mean the earlier of (a) the date of such Debt Security or (b)
the date of any Debt Security (or portion thereof) for which such Debt Security
was issued (directly or indirectly) on registration of transfer, exchange or
substitution.
"Original Issue Discount Security" shall mean any Debt
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 5.01.
The term "outstanding," when used with reference to Debt
Securities, shall, subject to the provisions of Section 7.04, mean, as of any
particular time, all Debt Securities authenticated and delivered by the Trustee
or the Authenticating Agent under this Indenture, except
Debt Securities theretofore canceled by the Trustee or the
Authenticating Agent or delivered to the Trustee for cancellation;
(a)Debt Securities, or portions thereof, for the payment or
redemption of which moneys in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent (other
than the Company) or shall have been set aside and segregated in trust
by the Company (if the Company shall act as its own paying agent);
provided that, if such Debt Securities, or portions thereof, are to be
redeemed prior to maturity thereof, notice of such redemption shall
have been given as provided in Article Fourteen or provision
satisfactory to the Trustee shall have been made for giving such
notice; and
(b)Debt Securities paid pursuant to Section 2.08 or in lieu of
or in substitution for which other Debt Securities shall have been
authenticated and delivered pursuant to
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the terms of Section 2.08 unless proof satisfactory to the Company
and the Trustee is presented that any such Debt Securities are held by
bona fide holders in due course.
In determining whether the holders of the requisite principal
amount of outstanding Debt Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant to Section 5.01.
"Person" shall mean any individual, corporation, limited
liability company, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Predecessor Security" of any particular Debt Security means
every previous Debt Security evidencing all or a portion of the same debt as
that evidenced by such particular Debt Security; and, for the purposes of this
definition, any Debt Security authenticated and delivered under Section 2.08 in
lieu of a lost, destroyed or stolen Debt Security shall be deemed to evidence
the same debt as the lost, destroyed or stolen Debt Security.
"Principal Office of the Trustee," or other similar term,
shall mean the office of the Trustee, at which at any particular time its
corporate trust business shall be principally administered, which at the time
of the execution of this Indenture shall be The Bank of New York, 101 Barclay
Street, Floor 21 West, New York, New York 10286.
"Responsible Officer" shall mean, with respect to the Trustee,
any officer within the Principal Office of the Trustee, including any
vice-president, any assistant vice-president, any assistant secretary, any
assistant treasurer, any trust officer or other officer of the Principal Trust
Office of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter
is referred because of that officer's knowledge of and familiarity with the
particular subject.
"Securityholder," "holder of Debt Securities," or other
similar terms, shall mean any Person in whose name at the time a particular
Debt Security is registered on the register kept by the Company or the Trustee
for that purpose in accordance with the terms hereof.
"Senior Indebtedness" means, with respect to the Company
(except any other obligations which rank pari passu with the Debt Securities of
a series), (i) the principal and interest in respect of (A) indebtedness of the
Company for money borrowed and (B) indebtedness evidenced by securities,
debentures, notes, bonds or other similar instruments issued by the Company,
including, without limitation, any current or future indebtedness under any
indenture (other than this Indenture) to which the Company is a party; (ii) all
capital lease obligations of the Company; (iii) all obligations of the Company
issued or assumed as the deferred purchase price of property, all conditional
sale obligations of the
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Company and all obligations of the Company under any title retention agreement
(but excluding trade accounts payable arising in the ordinary course of
business); (iv) all obligations of the Company for the reimbursement of any
letter of credit, any banker's acceptance, any security purchase facility, any
repurchase agreement or similar arrangement, any interest rate swap, any other
hedging arrangement, any obligation under options or any similar credit or
other transaction; (v) all obligations of the type referred to in clauses (i)
through (iv) above of other Persons for the payment of which the Company is
responsible or liable as obligor, guarantor or otherwise; and (vi) all
obligations of the type referred to in clauses (i) through (v) above of other
Persons secured by any lien on any property or asset of the Company (whether or
not such obligation is assumed by the Company), except for (1) any indebtedness
between or among the Company or any Affiliate of the Company and (2) any series
of Debt Securities issued pursuant to this Indenture and guarantees in respect
of any such series of Debt Securities. Senior Indebtedness does not include
the Debt Securities of any series or any junior subordinated debt securities
issued in the future with subordination terms substantially similar to the Debt
Securities of any series. Senior Indebtedness shall continue to be Senior
Indebtedness and be entitled to the subordination provisions irrespective of
any amendment, modification or waiver of any term of such Senior Indebtedness.
"Subsidiary" shall mean with respect to any Person, (i) any
corporation at least a majority of the outstanding voting stock of which is
owned, directly or indirectly, by such Person or by one or more of its
Subsidiaries, or by such Person and one or more of its Subsidiaries, (ii) any
general partnership, joint venture or similar entity, at least a majority of
the outstanding partnership or similar interests of which shall at the time be
owned by such Person, or by one or more of its Subsidiaries, or by such Person
and one or more of its Subsidiaries and (iii) any limited partnership of which
such Person or any of its Subsidiaries is a general partner. For the purposes
of this definition, "voting stock" means shares, interests, participations or
other equivalents in the equity interest (however designated) in such Person
having ordinary voting power for the election of a majority of the directors
(or the equivalent) of such Person, other than shares, interests,
participations or other equivalents having such power only by reason of the
occurrence of a contingency.
"Trust Indenture Act" shall mean the Trust Indenture Act of
1939 as in force at the date of execution of this Indenture, except as provided
in Section 9.03; provided, however, that, in the event the Trust Indenture Act
of 1939 is amended after such date, "Trust Indenture Act" shall mean, to the
extent required by any such amendment, the Trust Indenture Act of 1939 as so
amended.
"Trust Securities" shall mean Common Securities and Capital
Securities of a National Commerce Trust.
"Trustee" shall mean the Person identified as "Trustee" in the
first paragraph hereof, and, subject to the provisions of Article VI hereof,
shall also include its successors and assigns as Trustee hereunder. The term
"Trustee" as used with respect to a particular series of Debt Securities shall
mean the trustee with respect to that series.
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"Yield to Maturity" shall mean the yield to maturity on a
series of Debt Securities, calculated at the time of issuance of such series of
Debt Securities, or if applicable, at the most recent predetermination of
interest on such series and calculated in accordance with accepted financial
practice.
ARTICLE II
DEBT SECURITIES
SECTION 2.01. Forms Generally.
The Debt Securities of each series shall be in substantially
the form as shall be established by or pursuant to a Board Resolution and as
set forth in an Officers' Certificate of the Company 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 any law or with any rules made pursuant thereto or with
any 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 Debt Securities.
In the event the Debt Securities are issued in definitive form
pursuant to this Indenture, such Debt Securities shall be typed, printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Debt Securities,
as evidenced by their execution of such Debt Securities.
SECTION 2.02. Form of Trustee's Certificate of
Authentication.
The Trustee's certificate of authentication on all Debt
Securities shall be in substantially the following form:
This is one of the Debt Securities of the series designated
therein referred to in the within-mentioned Indenture.
The Bank of New York, as Trustee
By
-------------------------
Authorized Signatory
SECTION 2.03. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more series up to
the aggregate principal amount of Debt Securities of that series from time to
time authorized by or pursuant
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to a Board Resolution of the Company or pursuant to one or more indentures
supplemental hereto. Prior to the initial issuance of Debt Securities of any
series, there shall be established in or pursuant to a Board Resolution of the
Company and set forth in an Officers' Certificate of the Company or established
in one or more indentures supplemental hereto:
(1)the title of the Debt Securities of the
series (which shall distinguish Debt Securities of the series
from all other Debt Securities);
(2)any limit upon the aggregate principal
amount of the Debt Securities of the series which may be
authenticated and delivered under this Indenture (except for
Debt Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Debt
Securities of the series pursuant to Section 2.07, 2.08, 2.09,
9.04 or 14.03);
(3)the date or dates on which the principal
of and premium, if any, on the Debt Securities of the series
is payable;
(4)the rate or rates at which the Debt
Securities of the series shall bear interest, if any, or the
method by which such interest may be determined, the date or
dates from which such interest shall accrue, the Interest
Payment Dates on which such interest shall be payable or the
manner of determination of such Interest Payment Dates and the
record dates for the determination of holders to whom interest
is payable on any such Interest Payment Dates;
(5)the place or places where the principal
of, and premium, if any, and any interest on Debt Securities
of the series shall be payable;
(6)the right, if any, to extend the interest
payment periods and the duration of such extension;
(7)the price or prices at which, the period
or periods within which and the terms and conditions upon
which Debt Securities of the series may be redeemed, in whole
or in part, at the option of the Company, pursuant to any
sinking fund or otherwise:
(8)the obligation, if any, of the Company to
redeem, purchase or repay Debt Securities of the series
pursuant to any sinking fund or analogous provisions or at the
option of a Securityholder thereof and the price or prices at
which and the period or periods within which, and the terms
and conditions upon which Debt Securities of the series shall
be redeemed, purchased or repaid, in whole or in part,
pursuant to such obligation;
(9)if other than denominations of $1,000 and
any integral multiple thereof, the denominations in which Debt
Securities of the series shall be issuable;
(10)if other than the principal amount
thereof, the portion of the
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principal amount of Debt Securities of the series which shall
be payable upon declaration of acceleration of the maturity
thereof pursuant to Section 5.01 or provable in bankruptcy
pursuant to Section 5.02;
(11)any Events of Default with respect to the
Debt Securities of a particular series, if not set forth
herein;
(12)the form of the Debt Securities of the
series including the form of the certificate of authentication
of such series;
(13)any trustee, authenticating or paying
agents, warrant agents, transfer agents or registrars with
respect to the Debt Securities of such series;
(14)whether the Debt 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 Security or Securities, and whether beneficial owners
of interests in any such Global Securities may exchange such
interests for other Debt Securities of such series in the
manner provided in Section 2.07, and the manner and the
circumstances under which and the place or places where any
such exchanges may occur if other than in the manner provided
in Section 2.07, and any other terms of the series relating to
the global nature of the Global Securities of such series and
the exchange, registration or transfer thereof and the payment
of any principal thereof, or interest or premium, if any,
thereon;
(15)if the Debt Securities of the series are
issued pursuant to an exemption from registration under the
Securities Act;
(16)the CUSIP number of the Debt Securities
of the series (if any); and
(17)any other terms of the series (which
terms shall not be inconsistent with the provisions of this
Indenture).
All Debt Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to such resolution of the Board of Directors or in any such
indenture supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution of the Company, a copy of an appropriate
record of such action shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Officers' Certificate of the Company setting forth the terms of
the series.
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SECTION 2.04. Authentication and Dating.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Debt Securities of any
series executed by the Company to the Trustee for authentication, and the
Trustee shall thereupon authenticate and make available for delivery said Debt
Securities to or upon the written order of the Company, signed by its Chairman
of the Board of Directors, Vice Chairman, the President, one of its Managing
Directors or one of its Vice Presidents and by its Secretary, any Assistant
Secretary, Treasurer or any Assistant Treasurer, without any further action by
the Company hereunder. In authenticating such Debt Securities, and accepting
the additional responsibilities under this Indenture in relation to such Debt
Securities, the Trustee shall be entitled to receive, and (subject to Section
6.01) shall be fully protected in conclusively relying upon:
(1)a copy of any Board Resolution or Board
Resolutions relating thereto and, if applicable, an
appropriate record of any action taken pursuant to such
resolution, in each case certified by the Secretary or an
Assistant Secretary of the Company as the case may be;
(2)an executed supplemental indenture, if
any;
(3)an Officers' Certificate prepared in
accordance with Section 13.06 setting forth the form and terms
of the Debt Securities if and as required pursuant to Sections
2.01 and 2.03, respectively; and
(4)an Opinion of Counsel prepared in
accordance with Section 13.06 which shall also state:
(a)that the form of such Debt Securities has been
established by or pursuant to a Board Resolution or by a
supplemental indenture as permitted by Section 2.01 in
conformity with the provisions of this Indenture;
(b)that the terms of such Debt Securities have been
established by or pursuant to a resolution of the Board of
Directors or by a supplemental indenture as permitted by
Section 2.03 in conformity with the provisions of this
Indenture;
(c)that such Debt Securities, when authenticated and
delivered by the Trustee and issued by the Company in each
case in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company; and
(d)that all laws and requirements in respect of the
execution and delivery by the Company of the Debt Securities,
have been complied with and that authentication and delivery
of the Debt Securities by the Trustee will not violate the
terms of this Indenture.
The Trustee shall have the right to decline to
authenticate and deliver any Debt
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Securities under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken or if a Responsible
Officer of the Trustee in good faith shall determine that such action would
expose the Trustee to personal liability to existing holders.
SECTION 2.05. Date and Denomination of Debt Securities.
The Debt Securities shall be issuable as registered Debt
Securities without coupons and in such denominations as shall be specified as
contemplated by Section 2.03. In the absence of any such specification with
respect to the Debt Securities of any series, the Debt Securities of such
series shall be issuable in the denominations of $1,000 and any multiple
thereof. The Debt Securities shall be numbered, lettered, or otherwise
distinguished in such manner or in accordance with such plans as the officers
executing the same may determine with the approval of the Trustee as evidenced
by the execution and authentication thereof.
Every Debt Security shall be dated the date of its
authentication, shall bear interest, if any, from such date and shall be
payable on such dates, in each case, as contemplated by Section 2.03. The
interest installment on any Security that is payable, and is punctually paid or
duly provided for, on any Interest Payment Date for Debt Securities of that
series shall be paid to the Person in whose name said Debt Security (or one or
more Predecessor Securities) is registered at the close of business on the
regular record date for such interest installment. In the event that any Debt
Security of a particular series or portion thereof is called for redemption and
the redemption date is subsequent to a regular record date with respect to any
Interest Payment Date and prior to such Interest Payment Date, interest on such
Debt Security will be paid upon presentation and surrender of such Debt
Security as provided in Section 14.03.
Any interest on any Debt Security that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date for a Debt
Security of the same 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
shall be paid by the Company, at its election, as provided in clause (1) or
clause (2) below:
(1)The Company may make payment of any Defaulted
Interest on Debt Securities to the Persons in whose names such Debt
Securities (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 such Debt
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
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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 nor less than ten days prior to the date of the proposed
payment and not less than ten 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 Securityholder at his or
her address as it appears in the Debt Security Register, not less than
ten days prior to 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
shall be paid to the Persons in whose names such Debt Securities (or
their respective Predecessor Securities) are registered on such
special record date and shall be no longer payable pursuant to the
following clause (2).
(2)The Company may make payment of any Defaulted
Interest on any Debt Securities in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
In respect of any series of Debt Securities in which the right to extend the
interest payment periods has been provided pursuant to Section 2.03(6), any
interest scheduled to become payable on an Interest Payment Date occurring
during a valid extension of an interest payment period shall not be Defaulted
Interest and shall be payable on such other date as may be specified in the
terms of such Debt Securities.
Unless otherwise set forth in a Board Resolution of the
Company or one or more indentures supplemental hereto establishing the terms of
any series of Debt Securities pursuant to Section 2.01 hereof, the term
"regular record date" as used in this Section with respect to a series of Debt
Securities with respect to any Interest Payment Date for such series shall mean
either the fifteenth day of the month immediately preceding the month in which
an Interest Payment Date established for such series pursuant to Section 2.01
hereof shall occur, if such Interest Payment Date is the first day of a month,
or the last day of the month immediately preceding the month in which an
Interest Payment Date established for such series pursuant to Section 2.01
hereof shall occur, if such Interest Payment Date is the fifteenth day of a
month, whether or not such date is a Business Day.
Subject to the foregoing provisions of this Section, each Debt
Security of a series delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Debt Security of such
series shall carry the rights to interest accrued and unpaid, and to accrue,
that were carried by such other Debt Security.
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SECTION 2.06. Execution of Debt Securities.
The Debt Securities shall be signed in the name and on behalf
of the Company by the manual or facsimile signature of its Chairman of the
Board of Directors, Vice Chairman, President, one of its Managing Directors or
one of its Executive Vice Presidents, Senior Vice Presidents or Vice Presidents
and by the manual or facsimile signature of its Secretary, one of its Assistant
Secretaries, its Treasurer or one of its Assistant Treasurers, under its
corporate seal which may be affixed thereto or printed, engraved or otherwise
reproduced thereon, by facsimile or otherwise, and which need not be attested.
Only such Debt Securities as shall bear thereon a certificate of authentication
substantially in the form herein before recited, executed by the Trustee or the
Authenticating Agent by the manual signature of an authorized officer, shall be
entitled to the benefits of this Indenture or be valid or obligatory for any
purpose. Such certificate by the Trustee or the Authenticating Agent upon any
Debt Security executed by the Company shall be conclusive evidence that the
Debt Security so authenticated has been duly authenticated and delivered
hereunder and that the holder is entitled to the benefits of this Indenture.
In case any officer of the Company who shall have signed any
of the Debt Securities shall cease to be such officer before the Debt
Securities so signed shall have been authenticated and delivered by the Trustee
or the Authenticating Agent, or disposed of by the Company, such Debt
Securities nevertheless may be authenticated and delivered or disposed of as
though the Person who signed such Debt Securities had not ceased to be such
officer of the Company; and any Debt Security may be signed on behalf of the
Company by such Persons as, at the actual date of the execution of such Debt
Security, shall be the proper officers of the Company, although at the date of
the execution of this Indenture any such person was not such an officer.
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SECTION 2.07. Exchange and Registration of Transfer of Debt
Securities.
Subject to Section 2.03(14), Debt Securities of any series may
be exchanged for a like aggregate principal amount of Debt Securities of the
same series of other authorized denominations. Debt Securities to be exchanged
may be surrendered at the principal corporate trust office of the Trustee or at
any office or agency to be maintained by the Company for such purpose as
provided in Section 3.02, and the Company shall execute, the Company or the
Trustee shall register and the Trustee or the Authenticating Agent shall
authenticate and make available for delivery in exchange therefor the Debt
Security or Debt Securities which the Securityholder making the exchange shall
be entitled to receive. Subject to Section 2.03(14), upon due presentment for
registration of transfer of any Debt Security of any series at the principal
corporate trust office of the Trustee or at any office or agency of the Company
maintained for such purpose as provided in Section 3.02, the Company shall
execute, the Company or the Trustee shall register and the Trustee or the
Authenticating Agent shall authenticate and make available for delivery in the
name of the transferee or transferees a new Debt Security or Debt Securities of
the same series for a like aggregate principal amount. Registration or
registration of transfer of any Debt Security by the Trustee or by any agent of
the Company appointed pursuant to Section 3.02, and delivery of such Debt
Security, shall be deemed to complete the registration or registration of
transfer of such Debt Security.
The Company shall cause to be kept, at the office or agency
maintained for the purpose of registration of transfer and for exchange as
provided in Section 3.02, a register (the "Debt Security Register") for each
series of Debt Securities issued hereunder in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
and transfer of all Debt Securities as in this Article Two provided. Such
register shall be in written form or in any other form capable of being
converted into written form within a reasonable time.
All Debt Securities presented for registration of transfer or
for exchange or payment shall (if so required by the Company or the Trustee or
the Authenticating Agent) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company and
the Trustee or the Authenticating Agent duly executed by, the holder or his
attorney duly authorized in writing.
No service charge shall be made for any exchange or
registration of transfer of Debt Securities, but the Company or the Trustee may
require payment of a sum sufficient to cover any tax, fee or other governmental
charge that may be imposed in connection therewith.
The Company or the Trustee shall not be required to exchange
or register a transfer of (a) any Debt Security for a period of 15 days next
preceding the date of selection of Debt Securities of such series for
redemption, or (b) any Debt Securities of any series selected, called or being
called for redemption in whole or in part, except in the case of any Debt
Securities of any series to be redeemed in part, the portion thereof not so to
be redeemed.
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Notwithstanding the foregoing, if pursuant to Section 2.03, a
series of Debt Securities are issued pursuant to an exemption from registration
under the Securities Act, such Debt Securities may not be transferred except in
compliance with the restricted securities legend set forth below (the
"Restrictive Securities Legend"), unless otherwise determined by the Company
pursuant to Section 2.03 and in accordance with applicable law:
THE DEBT SECURITIES HAVE NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE
SECURITIES LAWS. NEITHER THIS DEBT 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 DEBT SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH DEBT SECURITY PRIOR TO THE
DATE WHICH IS THREE YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND
THE LAST DATE ON WHICH NATIONAL COMMERCE BANCORPORATION (THE "COMPANY") OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS DEBT SECURITY OR ANY PREDECESSOR
OF THIS DEBT 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 DEBT 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 THAT IS ACQUIRING THE DEBT 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 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 IT IN
ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH MAY BE OBTAINED FROM THE
COMPANY. THE HOLDER OF THIS DEBT SECURITY AGREES THAT IT WILL COMPLY WITH THE
FOREGOING RESTRICTIONS. DEBT SECURITIES OWNED BY A PURCHASER THAT IS NOT A
QUALIFIED INSTITUTIONAL BUYER MAY NOT BE HELD IN BOOK-ENTRY FORM. THIS LEGEND
WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE
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RESALE RESTRICTIONS TERMINATION DATE.
Prior to any distribution of the Debt Securities to the
holders of Capital Securities in accordance with the related Declaration, the
Company and the Trustee shall enter into a supplemental indenture pursuant to
Article IX to provide for transfer procedures and restrictions with respect to
the Debt Securities substantially similar to those contained in the Declaration
with respect to Capital Securities of the corresponding series to the extent
applicable in the circumstances existing at the time of such distribution for
purposes of assuring, if applicable, that no registration of such Debt
Securities is required under the Securities Act of 1933, as amended.
SECTION 2.08. Mutilated, Destroyed, Lost or Stolen Debt
Securities.
In case any temporary or definitive Debt Security shall become
mutilated or be destroyed, lost or stolen, the Company shall execute, and upon
its written request the Trustee shall authenticate and deliver, a new Debt
Security of the same series bearing a number not contemporaneously outstanding,
in exchange and substitution for the mutilated Debt Security, or in lieu of and
in substitution for the Debt Security so destroyed, lost or stolen. In every
case the applicant for a substituted Debt Security shall furnish to the Company
and the Trustee such security or indemnity as may be required by them to save
each of them harmless, and, in every case of destruction, loss or theft, the
applicant shall also furnish to the Company and the Trustee evidence to their
satisfaction of the destruction, loss or theft of such Debt Security and of the
ownership thereof.
The Trustee may authenticate any such substituted Debt
Security and deliver the same upon the written request or authorization of any
officer of the Company. Upon the issuance of any substituted Debt Security,
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 connected therewith. In case any Debt Security which has matured or
is about to mature or has been called for redemption in full shall become
mutilated or be destroyed, lost or stolen, the Company may, instead of issuing
a substitute Debt Security, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated Debt Security) if the
applicant for such payment shall furnish to the Company and the Trustee such
security or indemnity as may be required by them to save each of them harmless
and, in case of destruction, loss or theft, evidence satisfactory to the
Company and to the Trustee of the destruction, loss or theft of such Security
and of the ownership thereof.
Every substituted Debt Security of any series issued pursuant
to the provisions of this Section 2.08 by virtue of the fact that any such Debt
Security is destroyed, lost or stolen shall constitute an additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Debt Security shall be found at any time, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all
other Debt Securities of the same series duly issued hereunder. All Debt
Securities shall be held and owned upon the express condition that, to the
extent permitted by applicable law, the
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foregoing provisions are exclusive with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Debt Securities and shall preclude any
and all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.09. Temporary Debt Securities.
Pending the preparation of definitive Debt Securities of any
series, the Company may execute and the Trustee shall authenticate and make
available for delivery temporary Debt Securities that are typed, printed or
lithographed. Temporary Debt Securities shall be issuable in any authorized
denomination, and substantially in the form of the definitive Debt Securities
but with such omissions, insertions and variations as may be appropriate for
temporary Debt Securities, all as may be determined by the Company. Every such
temporary Debt Security shall be executed by the Company and be authenticated
by the Trustee upon the same conditions and in substantially the same manner,
and with the same effect, as the definitive Debt Securities. Without
unreasonable delay the Company will execute and deliver to the Trustee or the
Authenticating Agent definitive Debt Securities and thereupon any or all
temporary Debt Securities of such series may be surrendered in exchange
therefor, at the principal corporate trust office of the Trustee or at any
office or agency maintained by the Company for such purpose as provided in
Section 3.02, and the Trustee or the Authenticating Agent shall authenticate
and make available for delivery in exchange for such temporary Debt Securities
a like aggregate principal amount of such definitive Debt Securities. Such
exchange shall be made by the Company at its own expense and without any charge
therefor except that in case of any such exchange involving a registration of
transfer the Company may require payment of a sum sufficient to cover any tax,
fee or other governmental charge that may be imposed in relation thereto.
Until so exchanged, the temporary Debt Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive
Debt Securities of the same series authenticated and delivered hereunder.
SECTION 2.10. Cancellation of Debt Securities Paid, etc.
All Debt Securities surrendered for the purpose of payment,
redemption, exchange or registration of transfer, shall, if surrendered to the
Company or any paying agent, be surrendered to the Trustee and promptly
canceled by it, or, if surrendered to the Trustee or any Authenticating Agent,
shall be promptly canceled by it, and no Debt Securities shall be issued in
lieu thereof except as expressly permitted by any of the provisions of this
Indenture. All Debt Securities canceled by any Authenticating Agent shall be
delivered to the Trustee. The Trustee shall return all canceled Debt
Securities to the Company for destruction unless the Company otherwise directs
the Trustee in writing. If the Company shall acquire any of the Debt
Securities, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Debt Securities unless and
until the same are surrendered to the Trustee for cancellation.
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SECTION 2.11. Global Securities.
(a)If the Company shall establish pursuant to Section 2.03
that the Debt Securities of a particular series are to be issued as a Global
Security, then the Company shall execute and the Trustee shall, in accordance
with Section 2.04, authenticate and deliver, a Global Security that (i) shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of, all or a specified portion of the outstanding Debt
Securities of such series, (ii) shall be registered in the name of the
Depositary or its nominee, (iii) shall be delivered by the Trustee to the
Depositary or pursuant to the Depositary's instruction and (iv) shall bear a
legend substantially to the following effect: "Except as otherwise provided in
Section 2.11 of the Indenture, this Debt Security may be transferred, in whole
but not in part, only to another nominee of the Depositary or to a successor
Depositary or to a nominee of such successor Depositary."
(b)Notwithstanding the provisions of Section 2.07, the Global
Security of a series may be transferred, in whole but not in part and only in
the manner provided in Section 2.07, only to another nominee of the Depositary
for such series, or to a successor Depositary for such series selected or
approved by the Company or to a nominee of such successor Depositary.
(c)If at any time the Depositary for a series of the Debt
Securities notifies the Company that it is unwilling or unable to continue as
Depositary for such series or if at any time the Depositary for such series
shall no longer be registered or in good standing under the Exchange Act, or
other applicable statute or regulation, and a successor Depositary for such
series is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such condition, as the case may be,
this Section 2.11 shall no longer be applicable to the Debt Securities of such
series and the Company will execute, and subject to Section 2.07, the Trustee,
upon written request of the Company, will authenticate and make available for
delivery the Debt Securities of such series in definitive registered form
without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Security of such series in
exchange for such Global Security. In addition, the Company may at any time
determine that the Debt Securities of any series shall no longer be represented
by a Global Security and that the provisions of this Section 2.11 shall no
longer apply to the Debt Securities of such series. In such event the Company
will execute and subject to Section 2.07, the Trustee, upon receipt of an
Officers' Certificate evidencing such determination by the Company, will
authenticate and make available for delivery the Debt Securities of such series
in definitive registered form without coupons, in authorized denominations, and
in an aggregate principal amount equal to the principal amount of the Global
Security of such series in exchange for such Global Security. Upon the
exchange of the Global Security for such Debt Securities in definitive
registered form without coupons, in authorized denominations, the Global
Security shall be canceled by the Trustee. Such Debt Securities in definitive
registered form issued in exchange for the Global Security pursuant to this
Section 2.11(c) shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Debt
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Securities to the Depositary for delivery to the Persons in whose names such
Debt Securities are so registered.
SECTION 2.12. CUSIP Numbers.
The Company in issuing the Debt Securities may use "CUSIP"
numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP"
numbers in notices of redemption as a convenience to Securityholders; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Debt Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Debt Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
The Company will promptly notify the Trustee in writing of any change in the
CUSIP numbers.
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each
series of Debt Securities that it will duly and punctually pay or cause to be
paid the principal of and premium, if any, and interest on each of the Debt
Securities of that series at the place, at the respective times and in the
manner provided in such Debt Securities. At the option of the Company, each
installment of interest on the Debt Securities of any series may be paid (i) by
mailing checks for such interest payable to the order of the holders of Debt
Securities entitled thereto as they appear on the registry books of the Company
or (ii) if so specified with respect to the Debt Securities of such series as
contemplated by Section 2.03, by wire transfer to any account with a banking
institution located in the United States designated by such Person to the
paying agent no later than the related record date.
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SECTION 3.02. Offices for Notices and Payments, etc.
So long as any of the Debt Securities remain outstanding, the
Company will maintain in the Borough of Manhattan, The City of New York, an
office or agency where the Debt Securities of each series may be presented for
payment, an office or agency where the Debt Securities of that series may be
presented for registration of transfer and for exchange as in this Indenture
provided and an office or agency where notices and demands to or upon the
Company in respect of the Debt Securities of that series or of this Indenture
may be served. The Company will give to the Trustee written notice of the
location of any such office or agency and of any change of location thereof.
Until otherwise designated from time to time by the Company in a notice to the
Trustee, or specified as contemplated by Section 2.03, such office or agency
for all of the above purposes shall be the office or agency of the Trustee. In
case the Company shall fail to maintain any such office or agency in the
Borough of Manhattan, The City of New York, or shall fail to give such notice
of the location or of any change in the location thereof, presentations and
demands may be made and notices may be served at the principal corporate trust
office of the Trustee.
In addition to any such office or agency, the Company may from
time to time designate one or more offices or agencies outside the Borough of
Manhattan, The City of New York, where the Debt Securities may be presented for
registration of transfer and for exchange in the manner provided in this
Indenture, and the Company may from time to time rescind such designation, as
the Company may deem desirable or expedient; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain any such office or agency in the Borough of Manhattan,
The City of New York, for the purposes above mentioned. The Company will give
to the Trustee prompt written notice of any such designation or rescission
thereof.
SECTION 3.03. Appointments to Fill Vacancies in Trustee's
Office.
The Company, whenever necessary to avoid or fill a vacancy in
the office of Trustee, will appoint, in the manner provided in Section 6.10, a
Trustee, so that there shall at all times be a Trustee hereunder.
SECTION 3.04. Provision as to Paying Agent.
(a)If the Company shall appoint a paying agent other than the
Trustee with respect to the Debt Securities of any series, it will cause such
paying agent to execute and deliver to the Trustee an instrument in which such
agent shall agree with the Trustee, subject to the provision of this Section
3.04,
(1) that it will hold all sums held by it as such agent for
the payment of the principal of and premium, if any, or interest, if any, on
the Debt Securities of such series (whether such sums have been paid to it by
the Company or by any other obligor on the Debt Securities of such series) in
trust for the benefit of the holders of the Debt Securities of such series;
(2) that it will give the Trustee prompt written notice of
any failure by the
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Company (or by any other obligor on the Debt Securities of such series) to make
any payment of the principal of and premium, if any, or interest, if any, on
the Debt Securities of such series when the same shall be due and payable; and
(3) that it will, at any time during the continuance of
any Event of Default, upon the written request of the Trustee, forthwith pay to
the Trustee all sums so held in trust by such paying agent.
(b)If the Company shall act as its own paying agent, it will, on
or before each due date of the principal of and premium, if any, or interest,
if any, on the Debt Securities of any series, set aside, segregate and hold in
trust for the benefit of the holders of the Debt Securities of such series a
sum sufficient to pay such principal, premium or interest so becoming due and
will notify the Trustee in writing of any failure to take such action and of
any failure by the Company (or by any other obligor under the Debt Securities
of such series) to make any payment of the principal of and premium, if any, or
interest, if any, on the Debt Securities of such series when the same shall
become due and payable.
Whenever the Company shall have one or more paying agents for any series
of Debt Securities, it will, on or prior to each due date of the principal of
and premium, if any, or interest, if any, on any Debt Securities of such
series, deposit with a paying agent a sum sufficient to pay the principal,
premium or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled thereto and (unless such paying agent is the
Trustee) the Company shall promptly notify the Trustee in writing of its action
or failure to act.
(c)Anything in this Section 3.04 to the contrary
notwithstanding, the Company may, at any time, for the purpose of obtaining a
satisfaction and discharge with respect to one or more or all series of Debt
Securities hereunder, or for any other reason, pay, or direct any paying agent
to pay to the Trustee all sums held in trust for any such series by the Company
or any such paying agent, such sums to be held by the Trustee upon the trusts
herein contained.
(d)Anything in this Section 3.04 to the contrary
notwithstanding, the agreement to hold sums in trust as provided in this
Section 3.04 is subject to Sections 11.03 and 11.04.
SECTION 3.05. Certificate to Trustee.
The Company will deliver to the Trustee on or before 120 days
after the end of each fiscal year in each year, so long as Debt Securities of
any series are outstanding hereunder, a Certificate stating that in the course
of the performance by the signers of their duties as officers of the Company
they would normally have knowledge of any default by the Company in the
performance of any covenants contained herein, stating whether or not they have
knowledge of any such default and, if so, specifying each such default of which
the signers have knowledge and the nature thereof.
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SECTION 3.06. Compliance with Consolidation Provisions.
The Company will not, while any of the Debt Securities remain
outstanding, consolidate with, or merge into, or merge into itself, or sell or
convey all or substantially all of its property to any other Person unless the
provisions of Article X hereof are complied with.
SECTION 3.07. Limitation on Dividends.
If Debt Securities of a series are initially issued to a
National Commerce Trust or a trustee of such trust in connection with the
issuance of Trust Securities by such National Commerce Trust (regardless of
whether Debt Securities continue to be held by such trust) and (i) there shall
have occurred and be continuing any event that would constitute an Event of
Default, (ii) the Company shall be in default with respect to its payment of
any obligations under a Capital Securities Guarantee or a Common Securities
Guarantee with respect to securities issued by such trust, or (iii) the Company
shall have given notice of its election to defer payments of interest on the
Debt Securities of such series by extending the interest payment period as
provided herein and such period, or any extension thereof, shall be continuing,
then (a) the Company shall not declare or pay any dividend on, make a
distribution with respect to, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of its capital stock or rights to
acquire such capital stock (other than (i) purchases or acquisitions of shares
of any such capital stock or rights to acquire such capital stock in connection
with the satisfaction by the Company of its obligations under any employee
benefit plans, (ii) as a result of a reclassification of the Company's capital
stock or rights to acquire such capital stock or the exchange or conversion of
one class or series of the Company's capital stock or rights to acquire such
capital stock for another class or series of the Company's capital stock or
rights to acquire such capital stock, (iii) 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, (iv) dividends and distributions made on the Company's capital stock
or rights to acquire such capital stock with the Company's capital stock or
rights to acquire such capital stock, or (v) any declaration of a dividend in
connection with the implementation of a shareholder 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), or make any guarantee payments
(other than payments under a Capital Securities Guarantee or a Common
Securities Guarantee) with respect to the foregoing and (b) the Company shall
not make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities issued by the Company that rank pari
passu with or junior to the Debt Securities of such series.
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SECTION 3.08. Covenants as to National Commerce Trusts.
In the event Debt Securities of a series are initially issued to
a National Commerce Trust or the Institutional Trustee of such National
Commerce Trust in connection with the issuance of Trust Securities by such
National Commerce Trust, for so long as such Trust Securities remain
outstanding, the Company shall maintain 100% ownership of the Common Securities
of such National Commerce Trust; provided, however, that any permitted
successor of the Company under this Indenture may succeed to the Company's
ownership of such Common Securities. The Company, as owner of a majority of
the Common Securities of such National Commerce Trust, shall use its reasonable
efforts to cause such National Commerce Trust (a) to remain a statutory
business trust, except in connection with a distribution of Debt Securities of
such series to the holders of such Trust Securities in liquidation of such
National Commerce Trust, the redemption of all of the Trust Securities of such
National Commerce Trust or certain mergers, consolidations or amalgamations,
each as permitted by the Declaration of such National Commerce Trust, and (b)
to otherwise continue to be classified as a grantor trust for United States
federal income tax purposes and (c) to use its reasonable efforts to cause each
holder of Trust Securities issued by such National Commerce Trust to be treated
as owning an undivided beneficial interest in the Debt Securities of such
series issued to such National Commerce Trust.
SECTION 3.09. Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of
each calendar year a written notice specifying the amount of original issue
discount (including daily rates and accrual periods), if any, accrued on
outstanding Debt Securities as of the end of such year.
ARTICLE IV
SECURITYHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 4.01. Securityholders' Lists.
The Company covenants and agrees that it will furnish or
caused to be furnished to the Trustee:
(a)on each regular record date for each series of Debt
Securities, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Securityholders of such series of Debt Securities as
of such record date (and on dates to be determined pursuant to Section 2.03 for
non-interest bearing securities in each year); 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;
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except that no such lists need be furnished under this Section 4.01 so long as
the Trustee is in possession thereof by reason of its acting as Debt Security
registrar for such series.
SECTION 4.02. Preservation and Disclosure of Lists.
(a)The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of the
holders of each series of Debt Securities (1) contained in the most recent list
furnished to it as provided in Section 4.01 or (2) received by it in the
capacity of Debt Securities registrar (if so acting) hereunder. The Trustee
may destroy any list furnished to it as provided in Section 4.01 upon receipt
of a new list so furnished.
(b)In case three or more holders of Debt Securities of any
series (hereinafter referred to as "applicants") apply in writing to the
Trustee and furnish to the Trustee reasonable proof that each such applicant
has owned a Debt Security of such series for a period of at least six months
preceding the date of such application, and such application states that the
applicants desire to communicate with other holders of Debt Securities of such
series or with holders of all Debt Securities with respect to their rights
under this Indenture or under such Debt Securities and is accompanied by a copy
of the form of proxy or other communication which such applicants propose to
transmit, then the Trustee shall within five Business Days after the receipt of
such application, at its election, either:
(1)afford such applicants access to the information
preserved at the time by the Trustee in accordance with the provisions
of subsection (a) of this Section 4.02, or
(2)inform such applicants as to the approximate
number of holders of such series or all Debt Securities, as the case
may be, whose names and addresses appear in the information preserved
at the time by the Trustee in accordance with the provisions of
subsection (a) of this Section 4.02, and as to the approximate cost of
mailing to such Securityholders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Securityholder of such series or all Debt Securities,
as the case may be, whose name and address appear in the information preserved
at the time by the Trustee in accordance with the provisions of subsection (a)
of this Section 4.02 a copy of the form of proxy or other communication which
is specified in such request with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with the
Securities and Exchange Commission, if permitted or required by applicable law,
together with a copy of the material to be mailed, a written statement to the
effect that, in the opinion of the Trustee, such mailing would be contrary to
the best interests of the holders of Debt Securities of such series or all Debt
Securities, as the case may be, or
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would be in violation of applicable law. Such written statement shall specify
the basis of such opinion. If said Commission, as permitted or required by
applicable law, after opportunity for a hearing upon the objections specified
in the written statement so filed, shall enter an order refusing to sustain any
of such objections or if, after the entry of an order sustaining one or more of
such objections, said Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
Securityholders with reasonable promptness after the entry of such order and
the renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Each and every holder of Debt Securities, by
receiving and holding the same, agrees with Company and the Trustee that
neither the Company nor the Trustee nor any paying agent shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the holders of Debt Securities in accordance with the
provisions of subsection (b) of this Section 4.02, regardless of the source
from which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
said subsection (b).
SECTION 4.03. [Reserved]
SECTION 4.04. Reports by the Trustee.
(a)The Trustee shall transmit to Securityholders 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. If required by Section 313(a) of the Trust Indenture Act,
the Trustee shall, within 60 days after each May 15 following the date of this
Indenture deliver to Securityholders a brief report, dated as of such May 15,
which complies with the provisions of such Section 313(a).
(b)A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with each stock
exchange, if any, upon which the Securities are listed, with the Commission, if
required by applicable law, and with the Company. The Company will promptly
notify the Trustee when the Debt Securities are listed on any stock exchange.
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SECTION 4.05. Reports by the Company.
Whether or not the Company is required by the rules and
regulations of the Commission, so long as any Debt Securities are outstanding,
the Company shall furnish to the holders of Debt Securities and the Trustee (i)
all quarterly and annual financial information that would be required to be
contained in a filing with the Commission on Forms 10-Q and 10-K if the Company
were required to file such Forms, and, with respect to the annual information
only, a report thereon by the Company's independent public accountants (who
shall be firm(s) of established national reputation) and (ii) all current
reports that would be required to be filed with the Commission on Form 8-K if
the Company were required to file such reports. All such information and
reports shall be filed with the Commission on or prior to the date on which
such filings would have been required to be made had the Company been subject
to the rules and regulations of the Commission. In addition, whether or not
required by the rules and regulations of the Commission, the Company shall file
a copy of all such information and reports with the Commission for public
availability within the time periods specified in the Commission's rules and
regulations (unless the Commission will not accept such a filing) and make such
information available to securities analysts and prospective investors upon
request. Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such reports,
information and documents shall not constitute constructive notice of any
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).
SECTION 4.06. Statement as to Compliance.
The Company will deliver to the Trustee annually, commencing
March 27, 1998, a Certificate stating whether or not to the best knowledge of
the signer thereof the Company is in compliance (without regard to periods of
grace or notice requirements) with all conditions and covenants under this
Indenture, and if the Company shall not be in compliance, specifying such
non-compliance and the nature and status thereof of which such signer may have
knowledge.
SECTION 4.07. Statement by Officers as to Default.
The Company shall deliver to the Trustee, as soon as possible
and in any event within five days after the Company becomes aware of the
occurrence of any Event of Default or an event which, with notice or the lapse
of time or both, would constitute an Event of Default, an Officers' Certificate
setting forth the details of such Event of Default or default and the action
which the Company proposes to take with respect thereto.
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ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
UPON AN EVENT OF DEFAULT
SECTION 5.01. Events of Default.
The following Events of Default with respect to Debt
Securities of any series or such other events as may be established with
respect to the Debt Securities of that series as contemplated by Section 2.03
hereof shall be "Events of Default" with respect to Debt Securities of that
series:
(a)the Company defaults in the payment of any interest upon
any Debt Securities of that series when it becomes due and payable, and
continuance of such default for a period of 30 days; provided, however, that a
valid extension of an interest payment period by the Company in accordance with
the terms of such Debt Securities shall not constitute a default in the payment
of interest for this purpose; or
(b)the Company defaults in the payment of all or any part of
the principal of (or premium, if any, on) any Debt Securities of that series as
and when the same shall become due and payable either at maturity, upon
redemption (including redemption for any sinking fund), by declaration of
acceleration or otherwise; or
(c)the Company defaults in the performance of, or breaches,
any of its covenants or agreements in this Indenture or in the terms of that
series of Debt Securities established as contemplated in this Indenture (other
than a covenant or agreement a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with), and continuance of such
default or breach 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 principal amount of
the outstanding Debt Securities of that series, a written notice specifying
such default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(d)a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Company in an involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Company or for any
substantial part of its property, or ordering the winding-up or liquidation of
its affairs and such decree or order shall remain unstayed and in effect for a
period of 90 consecutive days; or
(e)the Company shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, shall consent to the entry of an order for relief in an involuntary
case under any such law, or shall consent to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) of the Company or of any substantial
part of its
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property, or shall make any general assignment for the benefit of creditors, or
shall fail generally to pay its debts as they become due; or
(f)as to Debt Securities of any series issued to a National
Commerce Trust, such National Commerce Trust shall have voluntarily or
involuntarily liquidated, dissolved, wound-up its business or otherwise
terminated its existence except in connection with (i) the distribution of the
Debt Securities of such series to holders of such Trust Securities in
liquidation of their interests in such National Commerce Trust, (ii) the
redemption of all of the outstanding Trust Securities of such National Commerce
Trust or (iii) certain mergers, consolidations or amalgamations, each as
permitted by the Declaration of such National Commerce Trust.
If an Event of Default occurs and is continuing with respect
to any series of Debt Securities, then, and in each and every such case, unless
the principal of all of the Debt Securities of that series shall have already
become due and payable, either the Trustee or the holders of not less than 25%
in aggregate principal amount of the Debt Securities of that series then
outstanding hereunder, by notice in writing to the Company (and to the Trustee
if given by Securityholders), may declare the entire principal (or, if the Debt
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) of all
Debt Securities of that series and the interest accrued thereon, if any, to be
due and payable immediately, and upon any such declaration the same shall
become immediately due and payable.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal (or, if the Debt Securities
are Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) of the Debt Securities of any series (or of all
the Debt Securities, as the case may be) shall have been so declared due and
payable, and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, the Company shall
pay or shall deposit with the Trustee a sum sufficient to pay all matured
installments of interest upon all the Debt Securities of such series (or of all
the Debt Securities, as the case may be) and the principal of and premium, if
any, on any and all Debt Securities of such series (or of all the Debt
Securities, as the case may be) which shall have become due otherwise than by
acceleration (with interest upon such principal and premium, if any, and, to
the extent that payment of such interest is enforceable under applicable law,
on overdue installments of interest, at the same rate as the rate of interest
or Yield to Maturity (in the case of Original Issue Discount Securities)
specified in the Debt Securities of such series (or at the respective rates of
interest or Yields to Maturity of all the Debt Securities, as the case may be)
to the date of such payment or deposit) and such amount as shall be sufficient
to cover reasonable compensation to the Trustee and each predecessor Trustee,
their respective agents, attorneys and counsel, and all other amounts due to
the Trustee pursuant to Section 6.06, and if any and all Events of Default
under this Indenture, other than the non-payment of the principal of or
premium, if any, on Debt Securities which shall have become due by
acceleration, shall have been cured, waived or otherwise remedied as provided
herein -- then and in every such case the holders of a majority in aggregate
principal amount of the Debt Securities of such series (or of all the
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Debt Securities, as the case may be) then outstanding, by written notice to the
Company and to the Trustee, may waive all defaults with respect to that series
(or with respect to all Debt Securities, as the case may be, in such case,
treated as a single class) and rescind and annul such declaration and its
consequences, but no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default or shall impair any right consequent
thereon.
In case the Trustee shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any other reason or
shall have been determined adversely to the Trustee, then and in every such
case the Company, the Trustee and the holders of the Debt Securities shall be
restored respectively to their several positions and rights hereunder, and all
rights, remedies and powers of the Company, the Trustee and the holders of the
Debt Securities shall continue as though no such proceeding had been taken.
SECTION 5.02. Payment of Debt Securities on Default; Suit
Therefor.
The Company covenants that (a) in case default shall be made
in the payment of any installment of interest upon any of the Debt Securities
of any series as and when the same shall become due and payable, and such
default shall have continued for a period of 30 days, or (b) in case default
shall be made in the payment of the principal of or premium, if any, on any of
the Debt Securities of any series as and when the same shall have become due
and payable, whether at maturity of the Debt Securities of that series or upon
redemption or by declaration of acceleration or otherwise -- then, upon demand
of the Trustee, the Company will pay to the Trustee, for the benefit of the
holders of the Debt Securities of that series the whole amount that then shall
have become due and payable on all such Debt Securities of that series for
principal and premium, if any, or interest, or both, as the case may be, with
interest upon the overdue principal and premium, if any, and (to the extent
that payment of such interest is enforceable under applicable law) upon the
overdue installments of interest at the rate or Yield to Maturity (in the case
of Original Issue Discount Securities) borne by the Debt Securities of that
series; and, in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including a reasonable compensation
to the Trustee, its agents, attorneys and counsel, and any other amounts due to
the Trustee under Section 6.06. In case the Company shall fail forthwith to
pay such amounts upon such demand, the Trustee, in its own name and as trustee
of an express trust, shall be entitled and empowered to institute any actions
or proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceeding to judgment or final
decree, and may enforce any such judgment or final decree against the Company
or any other obligor on such Debt Securities and collect in the manner provided
by law out of the property of the Company or any other obligor on such Debt
Securities wherever situated the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy
or for the reorganization of the Company or any other obligor on the Debt
Securities of any series under Title 11, United States Code, or any other
applicable law, or in case a receiver or trustee shall have been appointed for
the property of the Company or such other obligor, or in the case of
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any other similar judicial proceedings relative to the Company or other obligor
upon the Debt Securities of any series, or to the creditors or property of the
Company or such other obligor, the Trustee, irrespective of whether the
principal of the Debt Securities of any series shall then be due and payable as
therein expressed or by declaration of acceleration or otherwise and
irrespective of whether the Trustee shall have made any demand pursuant to the
provisions of this Section 5.02, shall be entitled and empowered, by
intervention in such proceedings or otherwise, to file and prove a claim or
claims for the whole amount of principal and interest (or, if the Debt
Securities of that series are Original Issue Discount Securities such portion
of the principal amount as may be specified in the terms of that series) owing
and unpaid in respect of the Debt Securities of such series and, in case of any
judicial proceedings, to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for reasonable compensation to the Trustee and
each predecessor Trustee, and their respective agents, attorneys and counsel,
and for reimbursement of all other amounts due to the Trustee under Section
6.06 and of the Securityholders allowed in such judicial proceedings relative
to the Company or any other obligor on the Debt Securities of any series, or to
the creditors or property of the Company or such other obligor, unless
prohibited by applicable law and regulations, to vote on behalf of the holders
of the Debt Securities or any series in any election of a trustee or a standby
trustee in arrangement, reorganization, liquidation or other bankruptcy or
insolvency proceedings or Person performing similar functions in comparable
proceedings, and to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute the same after the deduction
of its charges and expenses; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of the
Securityholders to make such payments to the Trustee, and, in the event that
the Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee such amounts as shall be sufficient to
cover reasonable compensation to the Trustee, each predecessor Trustee and
their respective agents, attorneys and counsel, and all other amounts due to
the Trustee under Section 6.06.
Nothing herein contained shall be construed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Debt Securities of any series or the rights of any
holder thereof or to authorize the Trustee to vote in respect of the claim of
any Securityholder in any such proceeding.
All rights of action and of asserting claims under this
Indenture, or under any of the Debt Securities, may be enforced by the Trustee
without the possession of any of the Debt Securities, or the production thereof
at any trial or other proceeding relative thereto, and any such suit or
proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall be for the
ratable benefit of the holders of the Debt Securities.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the holders of the Debt Securities, and it shall not be
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necessary to make any holders of the Debt Securities parties to any such
proceedings.
SECTION 5.03. Application of Moneys Collected by Trustee.
Any moneys collected by the Trustee shall be applied in the
following order, at the date or dates fixed by the Trustee for the distribution
of such moneys, upon presentation of the several Debt Securities in respect of
which moneys have been collected, and stamping thereon the payment, if only
partially paid, and upon surrender thereof if fully paid:
First: To the payment of costs and expenses of collection
applicable to such series and reasonable compensation to the Trustee, its
agents, attorneys and counsel, and of all other amounts due to the Trustee
under Section 6.06;
Second: To the payment of all Senior Indebtedness of the
Company if and to the extent required by Article XV;
Third: To the payment of the amounts then due and unpaid upon
Debt Securities of such series for principal (and premium, if any), and
interest on the Debt Securities of such series, in respect of which or for the
benefit of which money has been collected, ratably, without preference or
priority of any kind, according to the amounts due on such Debt Securities for
principal (and premium, if any) and interest, respectively; and
Fourth: The balance, if any, to the Company.
SECTION 5.04. Proceedings by Securityholders.
No holder of any Debt Security of any series shall have any
right to institute any suit, action or proceeding for any remedy hereunder,
unless such holder previously shall have given to the Trustee written notice of
an Event of Default with respect to the Debt Securities of such series and
unless the holders of not less than 25% in aggregate principal amount of the
Debt Securities of that series then outstanding shall have given the Trustee a
written request to institute such action, suit or proceeding and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred thereby, and the Trustee for 60
days after its receipt of such notice, request and offer of indemnity shall
have failed to institute any such action, suit or proceeding; provided that no
holder of Debt Securities of any series shall have any right to prejudice the
rights of any other holder of Debt Securities of such series, obtain priority
or preference over any other such holder or enforce any right under this
Indenture except in the manner herein provided and for the equal, ratable and
common benefit of all holders of Debt Securities of the applicable series.
Notwithstanding any other provisions in this Indenture,
however, the right of any holder of any Debt Security to receive payment of the
principal of, premium, if any, and interest, on such Debt Security when due, or
to institute suit for the enforcement of any such payment, shall not be
impaired or affected without the consent of such holder. For the protection
and enforcement of the provisions of this Section, each and every
Securityholder
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and the Trustee shall be entitled to such relief as can be given either at law
or in equity.
SECTION 5.05. Proceedings by Trustee.
In case of an Event of Default hereunder the Trustee may in
its discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either by suit in
equity or by action at law or by proceeding in bankruptcy or otherwise, whether
for the specific enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in this Indenture, or
to enforce any other legal or equitable right vested in the Trustee by this
Indenture or by law.
SECTION 5.06. Remedies Cumulative and Continuing.
Except as otherwise provided in Section 2.08, all powers and
remedies given by this Article V to the Trustee or to the Securityholders
shall, to the extent permitted by law, be deemed cumulative and not exclusive
of any other powers and remedies available to the Trustee or the holders of the
Debt Securities, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this
Indenture or otherwise established with respect to such series, and no delay or
omission of the Trustee or of any holder of any of the Debt Securities to
exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power, or shall be
construed to be a waiver of any such default or an acquiescence therein; and,
subject to the provisions of Section 5.04, every power and remedy given by this
Article V or by law to the Trustee or to the Securityholders may be exercised
from time to time, and as often as shall be deemed expedient, by the Trustee or
by the Securityholders.
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SECTION 5.07. Direction of Proceedings and Waiver of Defaults
by Majority of Securityholders.
The holders of a majority in aggregate principal amount of the
Debt Securities of any or all series affected (voting as one class) at the time
outstanding shall have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect to such
series; provided, however, that (subject to the provisions of Section 6.01) the
Trustee shall have the right to decline to follow any such direction if the
Trustee shall determine that the action so directed would be unjustly
prejudicial to the holders not taking part in such direction or if the Trustee
being advised by counsel determines that the action or proceeding so directed
may not lawfully be taken or if a Responsible Officer of the Trustee shall
determine that the action or proceedings so directed would involve the Trustee
in personal liability. Prior to any declaration accelerating the maturity of
any series of the Debt Securities, or of all the Debt Securities, as the case
may be, the holders of a majority in aggregate principal amount of the Debt
Securities of that series at the time outstanding may on behalf of the holders
of all of the Debt Securities of such series waive (or modify any previously
granted waiver of) any past default or Event of Default, including any default
or Event of Default the conditions for the occurrence of which are established
pursuant to Section 2.03, and its consequences, except a default (a) in the
payment of principal of, premium, if any, or interest on any of the Debt
Securities, (b) in respect of covenants or provisions hereof which cannot be
modified or amended without the consent of the holder of each Debt Security
affected, or (c) in respect of the covenants contained in Section 3.08;
provided, however, that if the Debt Securities of such series are held by a
National Commerce Trust or a trustee of such trust, such waiver or modification
to such waiver shall not be effective until the holders of a majority in
liquidation preference of Trust Securities of the applicable National Commerce
Trust shall have consented to such waiver or modification to such waiver;
provided, further, that if the consent of the holder of each outstanding Debt
Security is required, such waiver shall not be effective until each holder of
the Trust Securities of the applicable National Commerce Trust shall have
consented to such waiver. Upon any such waiver, the default covered thereby
shall be deemed to be cured for all purposes of this Indenture and the Company,
the Trustee and the holders of the Debt Securities of such series shall be
restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or Event of Default
or impair any right consequent thereon. Whenever any default or Event of
Default hereunder shall have been waived as permitted by this Section 5.07,
said default or Event of Default shall for all purposes of the Debt Securities
of that series (or of all Securities, as the case may be) and this Indenture be
deemed to have been cured and to be not continuing.
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SECTION 5.08. Notice of Defaults.
The Trustee shall, within 90 days after the occurrence of a
default with respect to the Debt Securities of any series, mail to all
Securityholders of that series, as the names and addresses of such holders
appear upon the Debt Security Register, notice of all defaults with respect to
that series known to the Trustee, unless such defaults shall have been cured
before the giving of such notice (the term "defaults" for the purpose of this
Section 5.08 being hereby defined to be the events specified in clauses (a),
(b), (c), (d), (e) and (f) of Section 5.01, not including periods of grace, if
any, provided for therein, and irrespective of the giving of written notice
specified in clause (c) of Section 5.01); and provided that, except in the case
of default in the payment of the principal of, premium, if any, or interest on
any of the Debt Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as a Responsible Officer of the Trustee
in good faith determines that the withholding of such notice is in the
interests of the Securityholders of such series; and provided further, that in
the case of any default of the character specified in Section 5.01(c) no such
notice to Securityholders of such series shall be given until at least 60 days
after the occurrence thereof but shall be given within 90 days after such
occurrence.
SECTION 5.09. Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder of any
Debt 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 and expenses, 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 5.09 shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Securityholder,
or group of Securityholders of any series, holding in the aggregate more than
10% in principal amount of the Debt Securities of that series outstanding, or
to any suit instituted by any Securityholder for the enforcement of the payment
of the principal of (or premium, if any) or interest on any Debt Security
against the Company on or after the same shall have become due and payable.
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ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of Trustee.
With respect to the holders of any series of Debt Securities
issued hereunder, the Trustee, prior to the occurrence of an Event of Default
with respect to Debt Securities of that series and after the curing or waiving
of all Events of Default which may have occurred, with respect to Debt
Securities of that series, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. In case an Event of
Default with respect to the Debt Securities of a series has occurred (which has
not been cured or waived) 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 man would exercise or use under the
circumstances in the conduct of his own affairs.
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:
(a)prior to the occurrence of an Event of Default with respect
to Debt Securities of a series and after the curing or waiving of all Events of
Default with respect to that series which may have occurred
(1)the duties and obligations of the Trustee with
respect to Debt Securities of such series shall be determined solely
by the express provisions of this Indenture, and the Trustee shall not
be liable except for the performance of such duties and obligations
with respect to such series as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into
this Indenture against the Trustee, and
(2)in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
any certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; but, in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith, in accordance with the
direction of the Securityholders pursuant to Section 5.07, relating to the
time, method and place of conducting any proceeding
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for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if there is ground for believing that the
repayment of such funds or liability is not assured to it under the terms of
this Indenture or indemnity satisfactory to the Trustee against such risk is
not reasonably assured to it.
SECTION 6.02. Reliance on Documents, Opinions, etc.
Except as otherwise provided in 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, consent, order, bond,
note, debenture 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, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an Officers' Certificate
(unless other evidence in respect thereof be herein specifically prescribed);
and any Board Resolution may be evidenced to the Trustee by a copy thereof
certified by the Secretary or an Assistant Secretary of the Company;
(c)the Trustee may consult with counsel of its selection and
any advice or 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 accordance with such advice or Opinion of Counsel;
(d)the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders, pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby;
(e)the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture; nothing
contained herein shall, however, relieve the Trustee of the obligation, upon
the occurrence of an Event of Default with respect to a series of the Debt
Securities (that has not been cured or waived) to exercise with respect to Debt
Securities of that series such of the rights and powers vested in it by this
Indenture, and to use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs;
(f)the Trustee shall not be bound to make any investigation
into the facts or
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matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond, debenture, coupon or
other paper or document, unless requested in writing to do so by the holders of
not less than a majority in principal amount of the outstanding Debt Securities
of the series affected thereby; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it
by the terms of this Indenture, the Trustee may require reasonable indemnity
against such expense or liability as a condition to so proceeding;
(g)the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents (including any Authenticating Agent) or attorneys, and the Trustee shall
not be responsible for any misconduct or negligence on the part of any such
agent or attorney appointed by it with due care; and
(h)the Trustee shall not be charged with knowledge of any
Default or Event of Default with respect to the Debt Securities unless either
(1) a Responsible Officer shall have actual knowledge of such Default or Event
of Default or (2) written notice of such Default or Event of Default shall have
been given to the Trustee by the Company or any other obligor on the Debt
Securities or by any holder of the Debt Securities.
SECTION 6.03. No Responsibility for Recitals, etc.
The recitals contained herein and in the Debt Securities
(except in the certificate of authentication of the Trustee or the
Authenticating Agent) shall be taken as the statements of the Company and the
Trustee and the Authenticating Agent assume no responsibility for the
correctness of the same. The Trustee and the Authenticating Agent make no
representations as to the validity or sufficiency of this Indenture or of the
Debt Securities. The Trustee and the Authenticating Agent shall not be
accountable for the use or application by the Company of any Debt Securities or
the proceeds of any Debt Securities authenticated and delivered by the Trustee
or the Authenticating Agent in conformity with the provisions of this
Indenture.
SECTION 6.04. Trustee, Authenticating Agent, Paying Agents,
Transfer Agents or Registrar May Own Debt Securities.
The Trustee or any Authenticating Agent or any paying agent or
any transfer agent or any Debt Security registrar, in its individual or any
other capacity, may become the owner or pledgee of Debt Securities with the
same rights it would have if it were not Trustee, Authenticating Agent, paying
agent, transfer agent or Debt Security registrar.
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SECTION 6.05. Moneys to be Held in Trust.
Subject to the provisions of Section 11.04, all moneys
received by the Trustee or any paying agent shall, until used or applied as
herein provided, be held in trust for the purpose for which they were received,
but need not be segregated from other funds except to the extent required by
law. The Trustee and any paying agent shall be under no liability for interest
on any money received by it hereunder except as otherwise agreed in writing
with the Company. So long as no Event of Default shall have occurred and be
continuing, all interest allowed on any such moneys shall be paid from time to
time upon the written order of the Company, signed by the Chairman of the Board
of Directors, the President, a Managing Director, a Vice President, the
Treasurer or an Assistant Treasurer of the Company.
SECTION 6.06. Compensation and Expenses of Trustee.
The Company covenants and agrees to pay to the Trustee from
time to time, and the Trustee shall be entitled to, such reasonable
compensation as shall be agreed to in writing between the Company and the
Trustee (which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), and the Company will pay or
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all Persons not
regularly in its employ) except any such expense, disbursement or advance as
may arise from its negligence or bad faith. The Company also covenants to
indemnify each of the Trustee or any predecessor Trustee (and its officers,
agents, directors and employees) for, and to hold it harmless against, any and
all loss, damage, claim, liability or expense including taxes (other than taxes
based on the income of the Trustee) incurred without negligence or bad faith on
the part of the Trustee and arising out of or in connection with the acceptance
or administration of this trust, including the costs and expenses of defending
itself against any claim of liability in the premises. The obligations of the
Company under this Section 6.06 to compensate and indemnify the Trustee and to
pay or reimburse the Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder. Such additional indebtedness
shall be secured by a lien prior to that of the Debt Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the holders of particular Debt Securities.
Without prejudice to any other rights available to the Trustee
under applicable law, when the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.01(d), Section
5.01(e) or Section 5.01(f), the expenses (including the reasonable charges and
expenses of its counsel) and the compensation for the services are intended to
constitute expenses of administration under any applicable federal or state
bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the resignation
or removal of the Trustee and the defeasance or other termination of this
Indenture.
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SECTION 6.07. Officers' Certificate as Evidence.
Except as otherwise provided in Sections 6.01 and 6.02,
whenever in the administration of the provisions of this Indenture the Trustee
shall deem it necessary or desirable that a matter be proved or established
prior to taking or omitting any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered to
the Trustee, and such certificate, in the absence of negligence or bad faith on
the part of the Trustee, shall be full warrant to the Trustee for any action
taken or omitted by it under the provisions of this Indenture upon the faith
thereof.
SECTION 6.08. Conflicting Interest of Trustee.
If the Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee
and the Company shall in all respects comply with the provisions of Section
310(b) of the Trust Indenture Act, subject to the penultimate paragraph of such
section.
SECTION 6.09. Eligibility of Trustee.
The Trustee hereunder shall at all times be a corporation
organized and doing business under the laws of the United States of America or
any state or territory thereof or of the District of Columbia or a corporation
or other Person permitted to act as trustee by the Securities and Exchange
Commission authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least 50 million U.S. dollars
($50,000,000) and subject to supervision or examination by federal, state,
territorial, or District of Columbia 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 6.09 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
records of condition so published.
The Company may not, nor may any Person directly or indirectly
controlling, controlled by, or under common control with the Company, serve as
Trustee; provided such corporation shall be otherwise eligible and qualified
under this Article.
In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.09, the Trustee shall resign
immediately in the manner and with the effect specified in Section 6.10.
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SECTION 6.10. Resignation or Removal of Trustee.
(a)The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign with respect to one or more or all series of
Debt Securities by giving written notice of such resignation to the Company and
by mailing notice thereof, at the Company's expense, to the holders of the
applicable series of Debt Securities at their addresses as they shall appear on
the Debt Security Register. Upon receiving such notice of resignation, the
Company shall promptly appoint a successor trustee or trustees with respect to
the applicable series by written instrument, in duplicate, executed by order of
its Board of Directors, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor Trustee. If no successor
Trustee shall have been so appointed with respect to any series of Debt
Securities and have accepted appointment within 30 days after the mailing of
such notice of resignation to the affected Securityholders, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee, or any Securityholder who has been a bona fide holder of a
Debt Security or Debt Securities of the applicable series for at least six
months may, subject to the provisions of Section 5.09, on behalf of himself and
all others similarly situated, petition any such court for the appointment of a
successor Trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, appoint a successor Trustee.
(b)In case at any time any of the following shall occur --
(1) the Trustee shall fail to comply with the provisions of
Section 6.08 after written request therefor by the Company or by any
Securityholder who has been a bona fide holder of a Debt Security or
Debt Securities for at least six months, or
(2) the Trustee shall cease to be eligible in accordance
with the provisions of Section 6.09 and shall fail to resign after
written request therefor by the Company or by any such Securityholder,
or
(3) the Trustee shall become incapable of acting, or shall
be adjudged a bankrupt or insolvent, or a receiver of the Trustee or
of its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then, in any
such case, the Company may remove the Trustee and appoint a successor
Trustee by written instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument shall be delivered to
the Trustee so removed and one copy to the successor Trustee, or,
subject to the provisions of Section 5.09, any Securityholder who has
been a bona fide holder of a Debt Security or Debt Securities of the
applicable series 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. Such court may thereupon, after such notice, if
any, as it may deem proper and prescribe, remove the Trustee and
appoint successor Trustee.
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(c)Upon prior written notice to the Company and the Trustee,
the holders of a majority in aggregate principal amount of the Debt Securities
of any series at the time outstanding may at any time remove the Trustee with
respect to such series and nominate a successor Trustee with respect to the
applicable series of Debt Securities, which shall be deemed appointed as
successor Trustee with respect to the applicable series unless within ten
Business Days after such nomination the Company objects thereto, in which case
the Trustee so removed or any Securityholder of the applicable series, upon the
terms and conditions and otherwise as in subsection (a) of this Section 6.10
provided, may petition any court of competent jurisdiction for an appointment
of a successor Trustee with respect to such series.
(d)Any resignation or removal of the Trustee and appointment
of a successor Trustee pursuant to any of the provisions of this Section 6.10
shall become effective upon acceptance of appointment by the successor Trustee
as provided in Section 6.11.
SECTION 6.11. Acceptance by Successor Trustee.
Any successor Trustee appointed as provided in Section 6.10
shall execute, acknowledge and deliver to the Company and to its predecessor
Trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the retiring Trustee with respect to all or any
applicable series shall become effective and such successor Trustee, without
any further act, deed or conveyance, shall become vested with all the rights,
powers, duties and obligations with respect to such series of its predecessor
hereunder, with like effect as if originally named as Trustee herein; but,
nevertheless, on the written request of the Company or of the successor
Trustee, the Trustee ceasing to act shall, upon payment of any amounts then due
it pursuant to the provisions of Section 6.06, execute and deliver an
instrument transferring to such successor Trustee all the rights and powers of
the Trustee so ceasing to act and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
thereunder. Upon request of any such successor Trustee, the Company shall
execute any and all instruments in writing for more fully and certainly vesting
in and confirming to such successor Trustee all such rights and powers. Any
Trustee ceasing to act shall, nevertheless, retain a lien upon all property or
funds held or collected by such Trustee to secure any amounts then due it
pursuant to the provisions of Section 6.06.
If a successor Trustee is appointed with respect to the Debt
Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Debt Securities of any
applicable series shall execute and deliver an indenture supplemental hereto
which 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 Debt Securities of any series as to which the
predecessor Trustee is not retiring shall continue to be vested in the
predecessor Trustee, and 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 Trust hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be Trustee of a
trust or trusts hereunder separate and apart from
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any trust or trusts hereunder administered by any other such Trustee.
No successor Trustee shall accept appointment as provided in
this Section 6.11 unless at the time of such acceptance such successor Trustee
shall be qualified under the provisions of Section 6.08 and eligible under the
provisions of Section 6.09.
In no event shall a retiring Trustee be liable for the acts or
omissions of any successor Trustee hereunder.
Upon acceptance of appointment by a successor Trustee as
provided in this Section 6.11, the Company shall mail notice of the succession
of such Trustee hereunder to the holders of Debt Securities of any applicable
series at their addresses as they shall appear on the Debt Security Register.
If the Company fails to mail such notice within ten Business Days after the
acceptance of appointment by the successor Trustee, the successor Trustee shall
cause such notice to be mailed at the expense of the Company.
SECTION 6.12. Succession by Merger, etc.
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 without the execution or filing of any paper or any further act on
the part of any of the parties hereto; provided such corporation shall be
otherwise eligible and qualified under this Article.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the Debt Securities of
any series shall have been authenticated but not delivered, any such successor
to the Trustee may adopt the certificate of authentication of any predecessor
Trustee, and deliver such Debt Securities so authenticated; and in case at that
time any of the Debt Securities of any series shall not have been
authenticated, any successor to the Trustee may authenticate such Debt
Securities either in the name of any predecessor hereunder or in the name of
the successor Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Debt Securities of such series or in
this Indenture provided that the certificate of the Trustee shall have;
provided, however, that the right to adopt the certificate of authentication of
any predecessor Trustee or authenticate Debt Securities of any series in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
SECTION 6.13. Limitation on Rights of Trustee as a Creditor.
The Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship described in Section 311(b)
of the Trust Indenture Act. A Trustee who has resigned or been removed shall
be subject to Section 311(a) of the Trust Indenture Act to the extent included
therein.
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SECTION 6.14. Authenticating Agents.
There may be one or more Authenticating Agents appointed by
the Trustee upon the request of the Company with power to act on its behalf and
subject to its direction in the authentication and delivery of Debt Securities
of any series issued upon exchange or registration of transfer thereof as fully
to all intents and purposes as though any such Authenticating Agent had been
expressly authorized to authenticate and deliver Debt Securities of such
series; provided that the Trustee shall have no liability to the Company for
any acts or omissions of the Authenticating Agent with respect to the
authentication and delivery of Debt Securities of any series. Any such
Authenticating Agent shall at all times be a corporation organized and doing
business under the laws of the United States or of any state or territory
thereof or of the District of Columbia authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of at least
$5,000,000 and being subject to supervision or examination by federal, state,
territorial or District of Columbia authority. If such corporation publishes
reports of condition at least annually pursuant to law or the requirements of
such authority, then for the purposes of this Section 6.14 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 an Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect herein specified in this Section.
Any corporation into which any Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, consolidation or conversion to which any
Authenticating Agent shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of any Authenticating Agent,
shall be the successor of such Authenticating Agent hereunder, if such
successor corporation is otherwise eligible under this Section 6.14 without the
execution or filing of any paper or any further act on the part of the parties
hereto or such Authenticating Agent.
Any Authenticating Agent may at any time resign with respect
to one or more or all series of Debt Securities by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time
terminate the agency of any Authenticating Agent with respect to one or more or
all series of Debt Securities by giving written notice of termination 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 any
Authenticating Agent shall cease to be eligible under this Section 6.14, the
Trustee may, and upon the request of the Company shall, promptly appoint a
successor Authenticating Agent with respect to the applicable series eligible
under this Section 6.14, shall give written notice of such appointment to the
Company and shall mail notice of such appointment to all holders of the
applicable series of Debt Securities as the names and addresses of such holders
appear on the Debt Security Register. Any successor Authenticating Agent with
respect to all or any series upon acceptance of its appointment hereunder shall
become vested with all rights, powers, duties and responsibilities with respect
to such series of its predecessor hereunder, with like effect as
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if originally named as Authenticating Agent herein.
The Company agrees to pay to any Authenticating Agent from
time to time reasonable compensation for its services. Any Authenticating
Agent shall have no responsibility or liability for any action taken by it as
such in accordance with the directions of the Trustee.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Action by Securityholders.
Whenever in this Indenture it is provided that the holders of
a specified percentage in aggregate principal amount of the Debt Securities of
any or all series may take any action (including the making of any demand or
request, the giving of any notice, consent or waiver or the taking of any other
action) the fact that at the time of taking any such action the holders of such
specified percentage have joined therein may be evidenced (a) by any instrument
or any number of instruments of similar tenor executed by such Securityholders
in person or by agent or proxy appointed in writing, or (b) by the record of
such holders of Debt Securities voting in favor thereof at any meeting of such
Securityholders duly called and held in accordance with the provisions of
Article Eight, or (c) by a combination of such instrument or instruments and
any such record of such a meeting of such Securityholders or (d) by any other
method the Trustee deems satisfactory.
If the Company shall solicit from the Securityholders of any
series any request, demand, authorization, direction, notice, consent, waiver
or other action or revocation of the same, the Company may, at its option, as
evidenced by an Officers' Certificate, fix in advance a record date for such
series for the determination of Securityholders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other action or
revocation of the same, but the Company shall have no obligation to do so. If
such a record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other action or revocation of the same may be given
before or after the record date, but only the Securityholders of record at the
close of business on the record date shall be deemed to be Securityholders for
the purposes of determining whether Securityholders of the requisite proportion
of outstanding Debt Securities of that series have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other action or revocation of the same, and for that purpose the
outstanding Debt Securities of that series shall be computed as of the record
date; provided, however, that no such authorization, agreement or consent by
such Securityholders on the record date shall be deemed effective unless it
shall become effective pursuant to the provisions of this Indenture not later
than six months after the record date.
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SECTION 7.02. Proof of Execution by Securityholders.
Subject to the provisions of Section 6.01, 6.02 and 8.05,
proof of the execution of any instrument by a Securityholder or his agent or
proxy shall be sufficient if made in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee. The ownership of Debt Securities shall be proved
by the Debt Security Register or by a certificate of the Debt Security
registrar. The Trustee may require such additional proof of any matter
referred to in this Section as it shall deem necessary.
The record of any Securityholders' meeting shall be proved in
the manner provided in Section 8.06.
SECTION 7.03. Who Are Deemed Absolute Owners.
Prior to due presentment for registration of transfer of any
Debt Security, the Company, the Trustee, any Authenticating Agent, any paying
agent, any transfer agent and any Debt Security registrar may deem the Person
in whose name such Debt Security shall be registered upon the Debt Security
Register to be, and may treat him as, the absolute owner of such Debt Security
(whether or not such Debt Security shall be overdue) for the purpose of
receiving payment of or on account of the principal of, premium, if any, and
(subject to Section 2.05) interest on such Debt Security and for all other
purposes; and neither the Company nor the Trustee nor any Authenticating Agent
nor any paying agent nor any transfer agent nor any Debt Security registrar
shall be affected by any notice to the contrary. All such payments so made to
any holder for the time being or upon his order shall be valid, and, to the
extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Debt Security.
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SECTION 7.04. Debt Securities Owned by Company Deemed Not
Outstanding.
In determining whether the holders of the requisite aggregate
principal amount of Debt Securities have concurred in any direction, consent or
waiver under this Indenture, Debt Securities which are owned by the Company or
any other obligor on the Debt Securities or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any other obligor on the Debt Securities shall be
disregarded and deemed not to be outstanding for the purpose of any such
determination; provided that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver,
only Debt Securities which a Responsible Officer of the Trustee actually knows
are so owned shall be so disregarded. Debt Securities so owned which have been
pledged in good faith may be regarded as outstanding for the purposes of this
Section 7.04 if the pledgee shall establish to the satisfaction of the Trustee
the pledgee's right to vote such Debt Securities and that the pledgee is not
the Company or any such other obligor or Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Company or any such other obligor. In the case of a dispute as to such
right, any decision by the Trustee taken upon the advice of counsel shall be
full protection to the Trustee.
SECTION 7.05. Revocation of Consents; Future Holders Bound.
At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 7.01, of the taking of any action by the
holders of the percentage in aggregate principal amount of the Debt Securities
specified in this Indenture in connection with such action, any holder (in
cases where no record date has been set pursuant to Section 7.01) or any holder
as of an applicable record date (in cases where a record date has been set
pursuant to Section 7.01) of a Debt Security (or any Debt Security issued in
whole or in part in exchange or substitution therefor) the serial number of
which is shown by the evidence to be included in the Debt Securities the
holders of which have consented to such action may, by filing written notice
with the Trustee at the Principal Office of the Trustee and upon proof of
holding as provided in Section 7.02, revoke such action so far as concerns such
Debt Security (or so far as concerns the principal amount represented by any
exchanged or substituted Debt Security). Except as aforesaid any such action
taken by the holder of any Debt Security shall be conclusive and binding upon
such holder and upon all future holders and owners of such Debt Security, and
of any Debt Security issued in exchange or substitution therefor or on
registration of transfer thereof, irrespective of whether or not any notation
in regard thereto is made upon such Debt Security or any Debt Security issued
in exchange or substitution
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therefor.
ARTICLE VIII
SECURITYHOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings.
A meeting of Securityholders of any or all series may be
called at any time and from time to time pursuant to the provisions of this
Article Eight for any of the following purposes:
(a)to give any notice to the Company or to the Trustee, or to
give any directions to the Trustee, or to consent to the waiving of any default
hereunder and its consequences, or to take any other action authorized to be
taken by Securityholders pursuant to any of the provisions of Article V;
(b)to remove the Trustee and nominate a successor trustee
pursuant to the provisions of Article VI;
(c)to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 9.02; or
(d)to take any other action authorized to be taken by or on
behalf of the holders of any specified aggregate principal amount of such Debt
Securities under any other provision of this Indenture or under applicable law.
SECTION 8.02. Call of Meetings by Trustee.
The Trustee may at any time call a meeting of Securityholders
of any or all series to take any action specified in Section 8.01, to be held
at such time and at such place in the Borough of Manhattan, The City of New
York, as the Trustee shall determine. Notice of every meeting of the
Securityholders of any or all series, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken at such
meeting, shall be mailed to holders of Debt Securities of each series affected
at their addresses as they shall appear on the Debt Securities Register for
each series affected. Such notice shall be mailed not less than 20 nor more
than 180 days prior to the date fixed for the meeting.
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SECTION 8.03. Call of Meetings by Company or Securityholders.
In case at any time the Company pursuant to a Board
Resolution, or the holders of at least 10% in aggregate principal amount of the
Debt Securities of any or all series, as the case may be, then outstanding,
shall have requested the Trustee to call a meeting of Securityholders of any or
all series, as the case may be, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall
not have mailed the notice of such meeting within 20 days after receipt of such
request, then the Company or such Securityholders may determine the time and
the place in said Borough of Manhattan for such meeting and may call such
meeting to take any action authorized in Section 8.01, by mailing notice
thereof as provided in Section 8.02.
SECTION 8.04. Qualifications for Voting.
To be entitled to vote at any meeting of Securityholders a
Person shall (a) be a holder of one or more Debt Securities with respect to
which the meeting is being held or (b) a Person appointed by an instrument in
writing as proxy by a holder of one or more such Debt Securities. The only
Persons who shall be entitled to be present or to speak at any meeting of
Securityholders shall be the Persons entitled to vote at such meeting and their
counsel and any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 8.05. Regulations.
Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Securityholders, in regard to proof of the holding of Debt
Securities and of the appointment of proxies, and in regard to the appointment
and duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Securityholders as provided in Section 8.03, in which case
the Company or the Securityholders calling the meeting, as the case may be,
shall in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by majority vote of the
meeting.
Subject to the provisions of Section 7.04, at any meeting each
holder of Debt Securities with respect to which such meeting is being held or
proxy therefor shall be entitled to one vote for each $1,000 principal amount
(in the case of Original Issue Discount Securities, such principal amount to be
determined as provided in the definition "outstanding") of Debt Securities held
or represented by him; provided, however, that no vote shall be cast or counted
at any meeting in respect of any Debt Security challenged as not outstanding
and ruled by the chairman of the meeting to be not outstanding. The chairman
of the meeting shall have no right to vote other than by virtue of Debt
Securities held by him or instruments
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in writing as aforesaid duly designating him as the Person to vote on behalf of
other Securityholders. Any meeting of Securityholders duly called pursuant to
the provisions of Section 8.02 or 8.03 may be adjourned from time to time by a
majority of those present, whether or not constituting a quorum, and the
meeting may be held as so adjourned without further notice.
SECTION 8.06. Voting.
The vote upon any resolution submitted to any meeting of
holders of Debt Securities with respect to which such meeting is being held
shall be by written ballots on which shall be subscribed the signatures of such
holders or of their representatives by proxy and the serial number or numbers
of the Debt Securities held or represented by them. The permanent chairman of
the meeting shall appoint two inspectors of votes who shall count all votes
cast at the meeting for or against any resolution and who shall make and file
with the secretary of the meeting their verified written reports in triplicate
of all votes cast at the meeting. A record in duplicate of the proceedings of
each meeting of Securityholders shall be prepared by the secretary of the
meeting and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one
or more Persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was mailed as provided in
Section 8.02. The record shall show the serial numbers of the Debt Securities
voting in favor of or against any resolution. The record shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one of the duplicates shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee, the latter to have
attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
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SECTION 8.07. Quorum; Actions.
The Persons entitled to vote a majority in principal amount of
the Debt Securities of a series shall constitute a quorum for a meeting of
Securityholders of such series; provided, however, that if any action is to be
taken at such meeting with respect to a consent, waiver, request, demand,
notice, authorization, direction or other action which may be given by the
holders of not less than a specified percentage in principal amount of the Debt
Securities of a series, the Persons holding or representing such specified
percentage in principal amount of the Debt Securities of such series will
constitute a quorum. In the absence of a quorum within 30 minutes of the time
appointed for any such meeting, the meeting shall, if convened at the request
of Securityholders of such series, be dissolved. In any other case the meeting
may be adjourned for a period of not less than 10 days as determined by the
permanent chairman of the meeting prior to the adjournment of such meeting. In
the absence of a quorum at any such adjourned meeting, such adjourned meeting
may be further adjourned for a period of not less than 10 days as determined by
the permanent chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 8.02, except that such notice need be given only
once not less than five days prior to the date on which the meeting is
scheduled to be reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above, of the principal
amount of the Debt Securities of such series which shall constitute a quorum.
Except as limited by the proviso in the first paragraph of
Section 9.02, any resolution presented to a meeting or adjourned meeting duly
reconvened at which a quorum is present as aforesaid may be adopted by the
affirmative vote of the Holders of a majority in principal amount of the Debt
Securities of that series; provided, however, that, except as limited by the
proviso in the first paragraph of Section 9.02, any resolution with respect to
any consent, waiver, request, demand, notice, authorization, direction or other
action which this Indenture expressly provides may be given by the holders of
not less than a specified percentage in principal amount of the Debt Securities
of a series may be adopted at a meeting or an adjourned meeting duly reconvened
and at which a quorum is present as aforesaid only by the affirmative vote of
the holders of a not less than such specified percentage in principal amount of
the Debt Securities of that series.
Any resolution passed or decision taken at any meeting of
holders of Debt Securities of any series duly held in accordance with this
Section shall be binding on all the Securityholders of such series, whether or
not present or represented at the meeting.
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ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures without Consent of
Securityholders.
The Company, when authorized by a Board Resolution, and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as then in effect), without the consent of the
Securityholders, for one or more of the following purposes:
(a)to evidence the succession of another corporation to the
Company, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Company,
pursuant to Article X hereof;
(b)to add to the covenants of the Company such further
covenants, restrictions or conditions for the protection of the holders of all
or any series of Debt Securities (and if such covenants are to be for the
benefit of less than all series of Debt Securities stating that such covenants
are expressly being included for the benefit of such series) as the Board of
Directors shall consider to be for the protection of the holders of such Debt
Securities, and to make the occurrence, or the occurrence and continuance, of a
default in any of such additional covenants, restrictions or conditions a
default or an Event of Default permitting the enforcement of all or any of the
several remedies provided in this Indenture as herein set forth; provided,
however, that in respect of any such additional covenant, restriction or
condition such supplemental indenture may provide for a particular period of
grace after default (which period may be shorter or longer than that allowed in
the case of other defaults) or may provide for an immediate enforcement upon
such default or may limit the remedies available to the Trustee upon such
default;
(c)to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may be
defective or inconsistent with any other provision contained herein or in any
supplemental indenture, or to make such other provisions in regard to matters
or questions arising under this Indenture, including the qualification or
maintenance of the qualification of the Indenture under the Trust Indenture
Act; provided that any such action shall not adversely affect the interests of
the holders of the Debt Securities of any series;
(d)to add to, delete from, or revise the terms of Debt
Securities of any series, including, without limitation, any terms relating to
the issuance, exchange, registration or transfer of Debt Securities, including
to provide for transfer procedures and restrictions substantially similar to
those applicable to the Capital Securities relating to such series as required
by Section 2.07 (for purposes of assuring that no registration of Debt
Securities of a series subject to transfer restrictions is required under the
Securities Act of 1933, as amended); provided that any such action shall not
adversely affect the interests of the holders of the Debt Securities of any
series then outstanding (it being understood, for purposes of this proviso,
that transfer restrictions on Debt Securities of a series substantially similar
to those
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that were applicable to Capital Securities of the related series shall not be
deemed to adversely affect the holders of the Debt Securities);
(e)to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Debt Securities of one or
more series and to add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, pursuant to the requirements of
Section 6.11;
(f)to make any change (other than as elsewhere provided in
this paragraph) that does not adversely affect the rights of any Securityholder
in any material respect; or
(g)to provide for the issuance of and establish the form and
terms and conditions of the Debt Securities of any series, to establish the
form of any certifications required to be furnished pursuant to the terms of
this Indenture or any series of Debt Securities, or to add to the rights of the
holders of any series of Debt Securities.
The Trustee is hereby authorized to join with the Company in
the execution of any such supplemental indenture, to make any further
appropriate agreements and stipulations which may be therein contained and to
accept the conveyance, transfer and assignment of any property thereunder, but
the Trustee shall not be obligated to, but may in its discretion, enter into
any such supplemental indenture which affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of
this Section 9.01 may be executed by the Company and the Trustee without the
consent of the holders of any of the Debt Securities at the time outstanding,
notwithstanding any of the provisions of Section 9.02.
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SECTION 9.02. Supplemental Indentures with Consent of
Securityholders.
With the consent (evidenced as provided in Section 7.01) of
the holders of not less than a majority in aggregate principal amount of the
Debt Securities at the time outstanding of all series affected by such
supplemental indenture (voting as a class), the Company, when authorized by a
Board Resolution, and the Trustee may from time to time and at any time enter
into an indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act, then in effect, applicable to indentures
qualified thereunder) for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the holders
of the Debt Securities of each series so affected; provided, however, that no
such supplemental indenture shall without the consent of the holders of each
Debt Security then outstanding and affected thereby (i) extend the fixed
maturity of any Debt Security of any series, or reduce the principal amount
thereof or any premium thereon, or reduce the rate or extend the time of
payment of interest thereon, or reduce any amount payable on redemption thereof
or make the principal thereof or any interest or premium thereon payable in any
coin or currency other than that provided in the Debt Securities, or reduce the
amount of the principal of an Original Issue Discount Security that would be
due and payable upon an acceleration of the maturity thereof pursuant to
Section 5.01 or the amount thereof provable in bankruptcy pursuant to Section
5.02, or impair or affect the right of any Securityholder to institute suit for
payment thereof or impair the right of repayment, if any, at the option of the
holder, or (ii) reduce the aforesaid percentage of Debt Securities the holders
of which are required to consent to any such supplemental indenture; provided,
further, that if the Debt Securities of such series are held by a National
Commerce Trust or a trustee of such trust, such supplemental indenture shall
not be effective until the holders of a majority in liquidation preference of
Trust Securities of the applicable Trust shall have consented to such
supplemental indenture; provided further, that if the consent of the
Securityholder of each outstanding Debt Security is required, such supplemental
indenture shall not be effective until each holder of the Trust Securities of
the applicable National Commerce Trust shall have consented to such
supplemental indenture.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Debt Securities, or
which modifies the rights of Securityholders of such series with respect to
such covenant or provision, shall be deemed not to affect the rights under this
Indenture or the Securityholders of any other series.
Upon the request of the Company accompanied by a Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Securityholders
as aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
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Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to the provisions of this Section, the
Trustee shall transmit by mail, first class postage prepaid, a notice, prepared
by the Company, setting forth in general terms the substance of such
supplemental indenture, to the Securityholders of all series affected thereby
as their names and addresses appear upon the Debt Security Register. Any
failure of the Trustee to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
It shall not be necessary for the consent of the
Securityholders under this Section 9.02 to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
SECTION 9.03. Compliance with Trust Indenture Act; Effect of
Supplemental Indentures.
Any supplemental indenture executed pursuant to the provisions
of this Article IX shall comply with the Trust Indenture Act, as then in effect
to the extent applicable to indentures qualified under the Trust Indenture Act.
Upon the execution of any supplemental indenture pursuant to the provisions of
this Article IX, this Indenture shall be and be deemed to be modified and
amended in accordance therewith and the respective rights, limitations of
rights, obligations, duties and immunities under this Indenture of the Trustee,
the Company and the holders of Debt Securities of each series affected thereby
shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 9.04. Notation on Debt Securities.
Debt Securities of any series authenticated and delivered
after the execution of any supplemental indenture affecting such series
pursuant to the provisions of this Article IX may bear a notation as to any
matter provided for in such supplemental indenture. If the Company or the
Trustee shall so determine, new Debt Securities of any series so modified as to
conform, in the opinion of the Board of Directors of the Company, to any
modification of this Indenture contained in any such supplemental indenture may
be prepared and executed by the Company, authenticated by the Trustee or the
Authenticating Agent and delivered in exchange for the Debt Securities of any
series then outstanding.
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SECTION 9.05. Evidence of Compliance of Supplemental
Indenture to be Furnished to Trustee.
The Trustee, subject to the provisions of Sections 6.01 and
6.02, shall, in addition to the documents required by Section 13.06, receive an
Officers' Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant hereto complies with the requirements
of this Article IX. The Trustee shall receive an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant to this
Article IX is authorized or permitted by, and conforms to, the terms of this
Article IX and that it is proper for the Trustee under the provisions of this
Article IX to join in the execution thereof.
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.01. Company May Consolidate, etc., on Certain
Terms.
Nothing contained in this Indenture or in the Debt Securities
of any series shall prevent any consolidation or merger of the Company with or
into any other corporation or corporations (whether or not affiliated with the
Company) or successive consolidations or mergers in which the Company or its
successor or successors shall be a party or parties, or shall prevent any sale,
conveyance, transfer or other disposition of the property of the Company or its
successor or successors as an entirety, or substantially as an entirety, to any
other corporation (whether or not affiliated with the Company, or its successor
or successors) authorized to acquire and operate the same; provided, however,
that the Company hereby covenants and agrees that, upon any such consolidation,
merger (where the Company is not the surviving corporation), sale, conveyance,
transfer or other disposition, the due and punctual payment of the principal of
(and premium, if any) and interest on all of the Debt Securities of all series
in accordance with the terms of each series, according to their tenor, and the
due and punctual performance and observance of all the covenants and conditions
of this Indenture with respect to each series or established with respect to
such series to be kept or performed by the Company, shall be expressly assumed
by supplemental indenture (which shall conform to the provisions of the Trust
Indenture Act, as then in effect, applicable to indentures qualified
thereunder) satisfactory in form to the Trustee executed and delivered to the
Trustee by the entity formed by such consolidation, or into which the Company
shall have been merged, or by the entity which shall have acquired such
property.
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SECTION 10.02. Successor Entity to be Substituted.
In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition and upon the assumption by the successor entity,
by supplemental indenture, executed and delivered to the Trustee and
satisfactory in form to the Trustee, of the due and punctual payment of the
principal of and premium, if any, and interest on all of the Debt Securities
and the due and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed or observed by the Company, such
successor entity shall succeed to and be substituted for the Company, with the
same effect as if it had been named herein as the Company, and thereupon the
predecessor entity shall be relieved of any further liability or obligation
hereunder or upon the Debt Securities. Such successor entity thereupon may
cause to be signed, and may issue either in its own name or in the name of
National Commerce Bancorporation, any or all of the Debt Securities issuable
hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee or the Authenticating Agent; and, upon the order of
such successor entity instead of the Company and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee or the
Authenticating Agent shall authenticate and deliver any Debt Securities which
previously shall have been signed and delivered by the officers of the Company,
to the Trustee or the Authenticating Agent for authentication, and any Debt
Securities which such successor entity thereafter shall cause to be signed and
delivered to the Trustee or the Authenticating Agent for that purpose. All the
Debt Securities so issued shall in all respects have the same legal rank and
benefit under this Indenture as the Debt Securities theretofore or thereafter
issued in accordance with the terms of this Indenture as though all of such
Debt Securities had been issued at the date of the execution hereof.
SECTION 10.03. Opinion of Counsel to be Given to Trustee.
The Trustee, subject to the provisions of Sections 6.01 and
6.02, shall receive, in addition to the Opinion of Counsel required by Section
9.05, an Opinion of Counsel as conclusive evidence that any consolidation,
merger, sale, conveyance, transfer or other disposition, and any assumption,
permitted or required by the terms of this Article X complies with the
provisions of this Article X.
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ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. Discharge of Indenture.
When (a) the Company shall deliver to the Trustee for
cancellation all Debt Securities theretofore authenticated (other than any Debt
Securities which shall have been destroyed, lost or stolen and which shall have
been replaced or paid as provided in Section 2.08) and not theretofore
canceled, or (b) all the Debt Securities not theretofore canceled or delivered
to the Trustee for cancellation shall have become due and payable, or are by
their terms to become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and the Company shall deposit with the
Trustee, in trust, funds, which shall be immediately due and payable,
sufficient to pay at maturity or upon redemption all of the Debt Securities
(other than any Debt Securities which shall have been destroyed, lost or stolen
and which shall have been replaced or paid as provided in Section 2.08) not
theretofore canceled or delivered to the Trustee for cancellation, including
principal and premium, if any, and interest due or to become due to such date
of maturity or redemption date, as the case may be, but excluding, however, the
amount of any moneys for the payment of principal of, and premium, if any, or
interest on the Debt Securities (1) theretofore repaid to the Company in
accordance with the provisions of Section 11.04, or (2) paid to any state or to
the District of Columbia pursuant to its unclaimed property or similar laws,
and if in the case of either clause (a) or clause (b) the Company shall also
pay or cause to be paid all other sums payable hereunder by the Company, then
this Indenture shall cease to be of further effect except for the provisions of
Sections 2.05, 2.07, 2.08, 3.01, 3.02, 3.04, 6.06, 6.10 and 11.04 hereof shall
survive until such Debt Securities shall mature and be paid. Thereafter,
Sections 6.10 and 11.04 shall survive, and the Trustee, on demand of the
Company accompanied by 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, and at
the cost and expense of the Company, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture, the Company,
however, hereby agreeing to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred by the Trustee in connection with
this Indenture or the Debt Securities.
SECTION 11.02. Deposited Moneys to be Held in Trust by
Trustee.
Subject to the provisions of Section 11.04, all moneys
deposited with the Trustee pursuant to Section 11.01 shall be held in trust and
applied by it to the payment, either directly or through any paying agent
(including the Company if acting as its own paying agent), to the holders of
the particular Debt Securities for the payment of which such moneys have been
deposited with the Trustee, of all sums due and to become due thereon for
principal, and premium, if any, and interest.
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SECTION 11.03. Paying Agent to Repay Moneys Held.
Upon the satisfaction and discharge of this Indenture all
moneys then held by any paying agent of the Debt Securities (other than the
Trustee) shall, upon demand of the Company, be repaid to it or paid to the
Trustee, and thereupon such paying agent shall be released from all further
liability with respect to such moneys.
SECTION 11.04. Return of Unclaimed Moneys.
Any moneys deposited with or paid to the Trustee or any paying
agent for payment of the principal of, and premium, if any, or interest on Debt
Securities and not applied but remaining unclaimed by the holders of Debt
Securities for two years after the date upon which the principal of, and
premium, if any, or interest on such Debt Securities, as the case may be, shall
have become due and payable, shall be repaid to the Company by the Trustee or
such paying agent on written demand; and the holder of any of the Debt
Securities shall thereafter look only to the Company for any payment which such
holder may be entitled to collect and all liability of the Trustee or such
paying agent with respect to such moneys shall thereupon cease.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Indenture and Debt Securities Solely Corporate
Obligations.
No recourse for the payment of the principal of or premium, if
any, or interest on any Debt Security, or for any claim based thereon or
otherwise in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Company in this Indenture or in any supplemental
indenture, or in any such Debt Security, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation of the Company, either directly or
through the Company or any successor corporation of the Company, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly understood that all
such liability is hereby expressly waived and released as a condition of, and
as a consideration for, the execution of this Indenture and the issue of the
Debt Securities.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors.
All the covenants, stipulations, promises and agreements in
this Indenture contained by the Company shall bind its successors and assigns
whether so expressed or not.
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SECTION 13.02. Official Acts by Successor Entity.
Any act or proceeding by any provision of this Indenture
authorized or required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed with like force and
effect by the like board, committee, officer or other authorized Person of any
entity that shall at the time be the lawful successor of the Company.
SECTION 13.03. Surrender of Company Powers.
The Company by instrument in writing executed by authority of
2/3 (two-thirds) of its Board of Directors and delivered to the Trustee may
surrender any of the powers reserved to the Company and thereupon such power so
surrendered shall terminate both as to the Company, and as to any permitted
successor.
SECTION 13.04. Addresses for Notices, etc.
Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee or by the holders
of Debt Securities on the Company may be given or served in writing by being
deposited postage prepaid by registered or certified mail in a post office
letter box addressed (until another address is filed by the Company, with the
Trustee for the purpose) to the Company, One Commerce Square, Memphis,
Tennessee 38150, Attention: Lon M. Magness. Any notice, direction, request or
demand by any Securityholder or the Company to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes, if given or
made in writing at the office of the Trustee, addressed to the Trustee, 101
Barclay Street, Floor 21 West, New York, New York 10286, Attention: Corporate
Trust Administration.
SECTION 13.05. Governing Law.
This Indenture and each Debt Security shall be deemed to be a
contract made under the laws of the State of New York, and for all purposes
shall be governed by and construed in accordance with the laws of said State,
without regard to conflict of laws principles thereof.
SECTION 13.06. Evidence of Compliance with Conditions
Precedent.
Upon any application or demand by the Company to the Trustee
to take any action under any of the provisions of this Indenture, the Company
shall furnish to the Trustee an Officers' Certificate stating that in the
opinion of the signers all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture
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shall include (1) a statement by the person making such certificate or opinion
that such person has read such covenant or condition; (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 such person, 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 or not, in the opinion of such person, such condition
or covenant has been complied with.
SECTION 13.07. Non-Business Days.
Subject to Section 2.03, in any case where the date of payment
of interest on or principal of the Debt Securities will be a Saturday, Sunday
or a day on which banking institutions in New York City (in the State of New
York) are permitted or required by any applicable law to close, the payment of
such interest on or principal of the Debt Securities need not be made on such
date but may be made on the next succeeding day not a Saturday, Sunday or a day
on which banking institutions in such cities are permitted or required by any
applicable law to close, with the same force and effect as if made on the date
of payment and no interest shall accrue for the period from and after such
date.
SECTION 13.08. Trust Indenture Act to Control.
If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 13.09. Table of Contents, Headings, etc.
The table of contents and the titles and headings of the
articles and sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 13.10. Execution in Counterparts.
This Indenture may be executed in any number of counterparts,
each of which shall be an original, but such counterparts shall together
constitute but one and the same instrument.
SECTION 13.11. Separability.
In case any one or more of the provisions contained in this
Indenture or in the Debt Securities of any series shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
Indenture or of such Debt Securities, but this Indenture and such Debt
Securities shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
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SECTION 13.12. Assignment.
The Company will have the right at all times to assign any of
its rights or obligations under this Indenture to a direct or indirect wholly
owned Subsidiary of the Company, provided that, in the event of any such
assignment, the Company will remain liable for all such obligations. Subject to
the foregoing, this Indenture is binding upon and inures to the benefit of the
parties hereto and their respective successors and assigns. This Indenture may
not otherwise be assigned by the parties thereto.
SECTION 13.13. Acknowledgment of Rights.
The Company acknowledges that, with respect to any Debt
Securities held by any National Commerce Trust or the Institutional Trustee of
such National Commerce Trust, if the Institutional Trustee of such National
Commerce Trust fails to enforce its rights under this Indenture as the holder
of the series of Debt Securities held as the assets of such National Commerce
Trust after the holders of a majority in liquidation amount of the Capital
Securities of such National Commerce Trust have so directed such Institutional
Trustee, a holder of record of such Capital Securities may to the fullest
extent permitted by law institute legal proceedings directly against the
Company to enforce such Institutional Trustee's rights under this Indenture
without first instituting any legal proceedings against such Institutional
Trustee or any other Person. Notwithstanding the foregoing, if an Event of
Default has occurred and is continuing and such event is attributable to the
failure of the Company to pay interest (or premium, if any) or principal on the
applicable series of Debt Securities on the date such interest (or premium, if
any) or principal is otherwise payable (or in the case of redemption, on the
redemption date), the Company acknowledges that a holder of record of Capital
Securities of the National Commerce Trust that purchased the applicable series
of Debt Securities may directly institute a proceeding against the Company for
enforcement of payment to such holder directly of the principal of (or premium,
if any) or interest on the applicable series of Debt Securities having an
aggregate principal amount equal to the aggregate liquidation amount of the
Capital Securities of such holder on or after the respective due date specified
in the applicable series of Debt Securities.
ARTICLE XIV
REDEMPTION OF SECURITIES -- MANDATORY AND
OPTIONAL SINKING FUND
SECTION 14.01. Applicability of Article.
The provisions of this Article shall be applicable to the Debt
Securities of any series which are redeemable before their maturity or to any
sinking fund for the retirement of Debt Securities of a series except as
otherwise specified as contemplated by Section 2.03 for Debt Securities of such
series.
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SECTION 14.02. Notice of Redemption; Selection of Debt
Securities.
In case the Company shall desire to exercise the right to
redeem all, or, as the case may be, any part of the Debt Securities of any
series in accordance with their terms, it shall fix a date for redemption and
shall mail a notice of such redemption at least 30 and not more than 60 days
prior to the date fixed for redemption to the holders of Debt Securities of
such series so to be redeemed as a whole or in part at their last addresses as
the same appear on the Debt Security Register. Such mailing shall be by first
class mail. 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, failure to give such notice by mail or any
defect in the notice to the holder of any Debt Security of a series designated
for redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Debt Security of such series.
Each such notice of redemption shall specify the CUSIP number
of the Debt Securities to be redeemed, the date fixed for redemption, the
redemption price at which Debt Securities of such series are to be redeemed,
the place or places of payment, that payment will be made upon presentation and
surrender of such Debt Securities, that interest accrued to the date fixed for
redemption will be paid as specified in said notice, and that on and after said
date interest thereon or on the portions thereof to be redeemed will cease to
accrue. If less than all the Debt Securities of such series are to be redeemed
the notice of redemption shall specify the numbers of the Debt Securities of
that series to be redeemed. In case any Debt Security of a series is to be
redeemed in part only, the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that on and after the
date fixed for redemption, upon surrender of such Debt Security, a new Debt
Security or Debt Securities of that series in principal amount equal to the
unredeemed portion thereof will be issued.
On or prior to the redemption date specified in the notice of
redemption given as provided in this Section, the Company will deposit with the
Trustee or with one or more paying agents an amount of money sufficient to
redeem on the redemption date all the Debt Securities so called for redemption
at the appropriate redemption price, together with accrued interest to the date
fixed for redemption.
If all, or less than all, the Debt Securities of a series are
to be redeemed, the Company will give the Trustee notice not less than 45 nor
more than 60 days, respectively, prior to the redemption date as to the
aggregate principal amount of Debt Securities of that series to be redeemed and
the Trustee shall select, in such manner as in its sole discretion it shall
deem appropriate and fair, the Debt Securities of that series or portions
thereof (in integral multiples of $1,000, except as otherwise set forth in the
applicable form of Debt Security) to be redeemed.
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SECTION 14.03. Payment of Debt Securities Called for
Redemption.
If notice of redemption has been given as provided in Section
14.02 or Section 14.04, the Debt Securities or portions of Debt Securities of
the series 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, together with interest accrued to the date fixed
for redemption, and on and after said date (unless the Company shall default in
the payment of such Debt Securities at the redemption price, together with
interest accrued to said date) interest on the Debt Securities or portions of
Debt Securities of any series so called for redemption shall cease to accrue.
On presentation and surrender of such Debt Securities at a place of payment
specified in said notice, the said Debt Securities or the specified portions
thereof shall be paid and redeemed by the Company at the applicable redemption
price, together with interest accrued thereon to the date fixed for redemption.
Upon presentation of any Debt Security of any series redeemed
in part only, the Company shall execute and the Trustee shall authenticate and
make available for delivery to the holder thereof, at the expense of the
Company, a new Debt Security or Debt Securities of such series of authorized
denominations, in principal amount equal to the unredeemed portion of the Debt
Security so presented.
SECTION 14.04. Mandatory and Optional Sinking Fund.
The minimum amount of any sinking fund payment provided for by
the terms of Debt Securities of any series is herein referred to as a
"mandatory sinking fund payment," and any payment in excess of such minimum
amount provided for by the terms of Debt Securities of any series is herein
referred to as an "optional sinking fund payment." The last date on which any
such payment may be made is herein referred to as a "sinking fund payment
date."
In lieu of making all or any part of any mandatory sinking
fund payment with respect to any Debt Securities of a series in cash, the
Company may at its option (a) deliver to the Trustee Debt Securities of that
series theretofore purchased by the Company and (b) may apply as a credit Debt
Securities of that series which have been redeemed either at the election of
the Company pursuant to the terms of such Debt Securities or through the
application of optional sinking fund payments pursuant to the next succeeding
paragraph, in each case in satisfaction of all or any part of any mandatory
sinking fund payment, provided that such Debt Securities have not been
previously so credited. Each such Debt Security so delivered or applied as a
credit shall be credited at the sinking fund redemption price for such Debt
Securities and the amount of any mandatory sinking fund shall be reduced
accordingly. If the Company intends so to deliver or credit such Debt
Securities with respect to any mandatory sinking fund payment it shall deliver
to the Trustee at least 60 days prior to the next succeeding sinking fund
payment date for such series (a) a certificate signed by the Secretary, an
Assistant Secretary, the Treasurer or an Assistant Treasurer of the Company
specifying the portion of such sinking fund payment, if any, to be satisfied by
payment of cash and the portion of such sinking fund payment, if any, which is
to be satisfied by
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delivering and crediting such Debt Securities and the basis for such credit and
stating that such Debt Securities have not been previously so credited and (b)
any Debt Securities to be so delivered. All Debt Securities so delivered to
the Trustee shall be canceled by the Trustee and no Debt Securities shall be
authenticated in lieu thereof. If the Company fails to deliver such
certificate and Debt Securities at or before the time provided above, the
Company shall not be permitted to satisfy any portion of such mandatory sinking
fund payment by delivery or credit of Debt Securities.
At its option the Company may pay into the sinking fund for
the retirement of Debt Securities of any particular series, on or before each
sinking fund payment date for such series, any additional sum in cash as
specified by the terms of such series of Debt Securities. If the Company
intends to exercise its right to make any such optional sinking fund payment,
it shall deliver to the Trustee at least 60 days prior to the next succeeding
sinking fund payment date for such series a certificate signed by the
Secretary, an Assistant Secretary, the Treasurer or an Assistant Treasurer of
the Company stating that the Company intends to exercise such optional right
and specifying the amount which the Company intends to pay on such sinking fund
payment date. If the Company fails to deliver such certificate at or before
the time provided above, the Company shall not be permitted to make any
optional sinking fund payment with respect to such sinking fund payment date.
To the extent that such right is not exercised in any year it shall not be
cumulative or carried forward to any subsequent year.
If the sinking fund payment or payments (mandatory or
optional) made in cash plus any unused balance of any preceding sinking fund
payments made in cash shall exceed $50,000 (or a lesser sum if the Company
shall so request) with respect to the Debt Securities of any particular series,
it shall be applied by the Trustee or one or more paying agents on the next
succeeding sinking fund payment date to the redemption of Debt Securities of
such series at the sinking fund redemption price together with accrued interest
to the date fixed for redemption. The Trustee shall select, in the manner
provided in Section 14.02, for redemption on such sinking fund payment date a
sufficient principal amount of Debt Securities of such series to absorb said
cash, as nearly as may be, and the Trustee shall, at the expense and in the
name of the Company, thereupon cause notice of redemption of Debt Securities of
such series to be given in substantially the manner and with the effect
provided in Sections 14.02 and 14.03 for the redemption of Debt Securities of
that series in part at the option of the Company, except that the notice of
redemption shall also state that the Debt Securities of such series are being
redeemed for the sinking fund. Any sinking fund moneys not so applied or
allocated by the Trustee or any paying agent to the redemption of Debt
Securities of that series shall be added to the next cash sinking fund payment
received by the Trustee or such paying agent and, together with such payment,
shall be applied in accordance with the provisions of this Section 14.04. Any
and all sinking fund moneys held by the Trustee or any paying agent on the
maturity date of the Debt Securities of any particular series, and not held for
the payment or redemption of particular Debt Securities of such series, shall
be applied by the Trustee or such paying agent, together with other moneys, if
necessary, to be deposited sufficient for the purpose, to the payment of the
principal of the Debt Securities of that series at maturity.
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On or before 10:00 a.m. on each sinking fund payment date, the
Company shall pay to the Trustee or to one or more paying agents in cash a sum
equal to all interest accrued to the date fixed for redemption on Debt
Securities to be redeemed on the next following sinking fund payment date
pursuant to this Section.
Neither the Trustee nor any paying agent shall redeem any Debt
Securities of a series with sinking fund moneys, and the Trustee shall not mail
any notice of redemption of Debt Securities for such series by operation of the
sinking fund, during the continuance of a default in payment of interest on
such Debt Securities or of any Event of Default (other than an Event of Default
occurring as a consequence of this paragraph), except that if the notice of
redemption of any Debt Securities shall theretofore have been mailed in
accordance with the provisions hereof, the Trustee or any paying agent shall
redeem such Debt Securities if cash sufficient for that purpose shall be
deposited with the Trustee or such paying agent for that purpose in accordance
with the terms of this Article XIV. 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 the sinking fund shall,
during the continuance of such default or Event of Default, be held as security
for the payment of all such Debt Securities; provided, however, that in case
such Event of Default or default, shall have been cured or waived as provided
herein, such moneys shall thereafter be applied on the next succeeding sinking
fund payment date on which such moneys may be applied pursuant to the
provisions of this Section 14.04.
ARTICLE XV
SUBORDINATION OF DEBT SECURITIES
SECTION 15.01. Agreement to Subordinate.
The Company covenants and agrees, and each holder of Debt
Securities issued hereunder and under any supplemental indenture or by any
Board Resolution ("Additional Provisions") by such Securityholder's acceptance
thereof likewise covenants and agrees, that all Debt Securities shall be issued
subject to the provisions of this Article XV; and each holder of a Debt
Security, whether upon original issue or upon transfer or assignment thereof,
accepts and agrees to be bound by such provisions.
The payment by the Company of the principal of, and premium,
if any, and interest on all Debt Securities issued hereunder and under any
Additional Provisions shall, to the extent and in the manner hereinafter set
forth, be subordinated and junior in right of payment to the prior payment in
full of all Senior Indebtedness of the Company, whether outstanding at the date
of this Indenture or thereafter incurred.
No provision of this Article XV shall prevent the occurrence
of any default or Event of Default hereunder.
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SECTION 15.02. Default on Senior Indebtedness.
In the event and during the continuation of any default by the
Company in the payment of principal, premium, interest or any other payment due
on any Senior Indebtedness of the Company following any grace period, or in the
event that the maturity of any Senior Indebtedness of the Company has been
accelerated because of a default, then, in either case, no payment shall be
made by the Company with respect to the principal (including redemption and
sinking fund payments) of, or premium, if any, or interest on the Debt
Securities.
In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee when such payment is prohibited by the
preceding paragraph of this Section 15.02, such payment shall, subject to
Section 15.06, be held in trust for the benefit of, and shall be paid over or
delivered to, the holders of Senior Indebtedness or their respective
representatives, or to the trustee or trustees under any indenture pursuant to
which any of such Senior Indebtedness may have been issued, as their respective
interests may appear, but only to the extent that the holders of the Senior
Indebtedness (or their representative or representatives or a trustee) notify
the Trustee in writing within 90 days of such payment of the amounts then due
and owing on the Senior Indebtedness and only the amounts specified in such
notice to the Trustee shall be paid to the holders of Senior Indebtedness.
SECTION 15.03. Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Company or distribution of assets of
the Company of any kind or character, whether in cash, property or securities,
to creditors upon any dissolution or winding-up or liquidation or
reorganization of the Company, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, all amounts due upon
all Senior Indebtedness of the Company shall first be paid in full, or payment
thereof provided for in money in accordance with its terms, before any payment
is made by the Company, on account of the principal (and premium, if any) or
interest on the Debt Securities; and upon any such dissolution or winding-up or
liquidation or reorganization, any payment by the Company, or distribution of
assets of the Company of any kind or character, whether in cash, property or
securities, to which the Securityholders or the Trustee would be entitled to
receive from the Company, except for the provisions of this Article XV, shall
be paid by the Company, or by any receiver, trustee in bankruptcy, liquidating
trustee, agent or other Person making such payment or distribution, or by the
Securityholders or by the Trustee under this Indenture if received by them or
it, directly to the holders of Senior Indebtedness of the Company (pro rata to
such holders on the basis of the respective amounts of Senior Indebtedness held
by such holders, as calculated by the Company) or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing such Senior Indebtedness may have been issued,
as their respective interests may appear, to the extent necessary to pay such
Senior Indebtedness in full, in money or money's worth, after giving effect to
any concurrent payment or distribution to or for the holders of such Senior
Indebtedness, before any payment or distribution is made to the Securityholders
or to the Trustee.
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In the event that, notwithstanding the foregoing, any payment
or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, prohibited by the foregoing, shall be received by
the Trustee before all Senior Indebtedness of the Company is paid in full, or
provision is made for such payment in money in accordance with its terms, such
payment or distribution shall be held in trust for the benefit of and shall be
paid over or delivered to the holders of such Senior Indebtedness or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Indebtedness
may have been issued, as their respective interests may appear, as calculated
by the Company, for application to the payment of all Senior Indebtedness of
the Company, remaining unpaid to the extent necessary to pay such Senior
Indebtedness in full in money in accordance with its terms, after giving effect
to any concurrent payment or distribution to or for the benefit of the holders
of such Senior Indebtedness.
For purposes of this Article XV, the words "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 of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this
Article XV with respect to the Debt Securities to the payment of all Senior
Indebtedness of the Company, that may at the time be outstanding, provided that
(i) such Senior Indebtedness is assumed by the new corporation, if any,
resulting from any such reorganization or readjustment, and (ii) the rights of
the holders of such Senior Indebtedness are not, without the consent of such
holders, altered by such reorganization or readjustment. The consolidation of
the Company with, or the merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the conveyance or transfer
of its property as an entirety, or substantially as an entirety, to another
corporation upon the terms and conditions provided for in Article X of this
Indenture shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 15.03 if such other corporation
shall, as a part of such consolidation, merger, conveyance or transfer, comply
with the conditions stated in Article X of this Indenture. Nothing in Section
15.02 or in this Section 15.03 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.06 of this Indenture.
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SECTION 15.04. Subrogation.
Subject to the payment in full of all Senior Indebtedness of
the Company, the Securityholders shall be subrogated to the rights of the
holders of such Senior Indebtedness to receive payments or distributions of
cash, property or securities of the Company, applicable to such Senior
Indebtedness until the principal of (and premium, if any) and interest on the
Debt Securities shall be paid in full; and, for the purposes of such
subrogation, no payments or distributions to the holders of such Senior
Indebtedness of any cash, property or securities to which the Securityholders
or the Trustee would be entitled except for the provisions of this Article XV,
and no payment over pursuant to the provisions of this Article XV to or for the
benefit of the holders of such Senior Indebtedness by Securityholders or the
Trustee, shall, as between the Company, its creditors other than holders of
Senior Indebtedness of the Company, and the holders of the Debt Securities be
deemed to be a payment or distribution by the Company to or on account of such
Senior Indebtedness. It is understood that the provisions of this Article XV
are and are intended solely for the purposes of defining the relative rights of
the holders of the Securities, on the one hand, and the holders of such Senior
Indebtedness, on the other hand.
Nothing contained in this Article XV or elsewhere in this
Indenture, any Additional Provisions or in the Debt Securities is intended to
or shall impair, as between the Company, its creditors other than the holders
of Senior Indebtedness of the Company, and the holders of the Debt Securities,
the obligation of the Company, which is absolute and unconditional, to pay to
the holders of the Debt Securities the principal of (and premium, if any) and
interest on the Debt Securities as and when the same shall become due and
payable in accordance with their terms, or is intended to or shall affect the
relative rights of the holders of the Debt Securities and creditors of the
Company, other than the holders of Senior Indebtedness of the Company, nor
shall anything herein or therein prevent the Trustee or the holder of any Debt
Security from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article XV of the holders of such Senior Indebtedness in respect of cash,
property or securities of the Company, received upon the exercise of any such
remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article XV, the Trustee, subject to the provisions of
Article VI of this Indenture, and the Securityholders shall be entitled to
conclusively rely upon any order or decree made by any court of competent
jurisdiction in which such dissolution, winding-up, liquidation or
reorganization proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidation trustee, agent or other Person making such
payment or distribution, delivered to the Trustee or to the Securityholders,
for the purposes of ascertaining the Persons entitled to participate in such
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article
XV.
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SECTION 15.05. Trustee to Effectuate Subordination.
Each Securityholder by such Securityholder's acceptance
thereof authorizes and directs the Trustee on such Securityholder's behalf to
take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article XV and appoints the Trustee such
Securityholder's attorney-in-fact for any and all such purposes.
SECTION 15.06. Notice by the Company.
The Company shall give prompt written notice to a Responsible
Officer of the Trustee at the Principal Office of the Trustee of any fact known
to the Company that would prohibit the making of any payment of monies to or by
the Trustee in respect of the Debt Securities pursuant to the provisions of
this Article XV. Notwithstanding the provisions of this Article XV or any
other provision of this Indenture or any Additional Provisions, the Trustee
shall not be charged with knowledge of the existence of any facts that would
prohibit the making of any payment of monies to or by the Trustee in respect of
the Debt Securities pursuant to the provisions of this Article XV, unless and
until a Responsible Officer of the Trustee at the Principal Office of the
Trustee shall have received written notice thereof from the Company or a holder
or holders of Senior Indebtedness or from any trustee therefor; and before the
receipt of any such written notice, the Trustee, subject to the provisions of
Article VI of this Indenture, shall be entitled in all respects to assume that
no such facts exist; provided, however, that if the Trustee shall not have
received the notice provided for in this Section 15.06 at least two Business
Days prior to the date upon which by the terms hereof any money may become
payable for any purpose (including, without limitation, the payment of the
principal of (or premium, if any) or interest on any Debt Security), then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such money and to apply the same to
the purposes for which they were received, and shall not be affected by any
notice to the contrary that may be received by it within two Business Days
prior to such date.
The Trustee, subject to the provisions of Article VI of this
Indenture, shall be entitled to conclusively rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior
Indebtedness of the Company (or a trustee or representative on behalf of such
holder), to establish that such notice has been given by a holder of such
Senior Indebtedness or a trustee or representative on behalf of any such holder
or holders. In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a
holder of such Senior Indebtedness to participate in any payment or
distribution pursuant to this Article XV, the Trustee may request such Person
to furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of such Senior Indebtedness held by such Person, the extent to which
such Person is entitled to participate in such payment or distribution and any
other facts pertinent to the rights of such Person under this Article XV, and,
if such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to receive
such payment.
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SECTION 15.07. Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets of the Company
referred to in this Article XV, the Trustee, subject to the provisions of
Article VI of this Indenture, and the Securityholders shall be entitled to rely
upon any order or decree entered by any court of competent jurisdiction in
which such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, liquidating trustee, custodian,
receiver, assignee for the benefit of creditors, agent or other person making
such payment or distribution, delivered to the Trustee or to the
Securityholders, for the purpose of ascertaining the persons entitled to
participate in such payment or distribution, the holders of Senior Indebtedness
and other indebtednesss 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 XV.
SECTION 15.08. Rights of the Trustee; Holders of Senior
Indebtedness.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article XV in respect of any Senior
Indebtedness at any time held by it, to the same extent as any other holder of
Senior Indebtedness, and nothing in this Indenture or any Additional Provisions
shall deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness of the
Company, the Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this Article XV, and
no implied covenants or obligations with respect to the holders of such Senior
Indebtedness shall be read into this Indenture or any Additional Provisions
against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty
to the holders of such Senior Indebtedness and, subject to the provisions of
Article VI of this Indenture, the Trustee shall not be liable to any holder of
such Senior Indebtedness if it shall pay over or deliver to Securityholders,
the Company or any other Person money or assets to which any holder of such
Senior Indebtedness shall be entitled by virtue of this Article XV or
otherwise.
Nothing in this Article XV shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 6.06.
SECTION 15.09. Subordination May Not Be Impaired.
No right of any present or future holder of any Senior
Indebtedness of the Company 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 otherwise be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the
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holders of Senior Indebtedness of the Company may, at any time and from time to
time, without the consent of or notice to the Trustee or the Securityholders,
without incurring responsibility to the Securityholders and without impairing
or releasing the subordination provided in this Article XV or the obligations
hereunder of the holders of the Debt Securities to the holders of such Senior
Indebtedness, do any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, such
Senior Indebtedness, or otherwise amend or supplement in any manner such Senior
Indebtedness or any instrument evidencing the same or any agreement under which
such Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing such
Senior Indebtedness; (iii) release any Person liable in any manner for the
collection of such Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company, and any other Person.
The Bank of New York hereby accepts the trusts in this
Indenture declared and provided, upon the terms and conditions herein above set
forth.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed by their respective officers thereunto duly
authorized, as of the day and year first above written.
NATIONAL COMMERCE BANCORPORATION
By
--------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Trustee
By
-------------------------------
Name:
Title:
75563
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